Amendment I (cont’d):
After the general government’s secular humanist agenda hit a wall in Employment Division v. Smith (1990), the political branches of the general government responded to the supreme Court’s decision by passing the Religious Freedom Restoration Act (RFRA, 1993) and the American Indian Religious Freedom Act Amendments (AIRFAA, 1994). By doing so, the government essentially turned the wall into a speed bump. From the hermeneutical prologue’s perspective, the general government essentially set itself back on course to the secular humanist’s ultimate destination, the Tower of Babel redux, meaning global consolidation through cooperation with the United Nations, Federal Reserve and international banking fraud, fascist coordination between governments and corporations, militant Islam, and the remnants of marxism worldwide. The government steered itself, to some extent, away from regression into the de facto Protestant establishment, and towards something worse, something cloaked in good intentions, but also ultimate evil. This globalization agenda has revealed itself in practically all supreme Court cases of the de facto secular humanist establishment, in one way or another, but it has usually done so very subtly. For the sake of manifesting this subtle globalization agenda, using the hermeneutical prologue’s metaconstitution to interpret and apply the Constitution, in contrast to the supreme Court’s somewhat arbitrary and capricious approach to interpreting and applying the Constitution, we’ll now examine five cases that were decided subsequent to 1994’s passage of AIRFAA. Examining these five cases should show how to apply the metaconstitution’s interpretational protocol to cases and controversies in the Court’s caseload in general. The five cases we’ll treat here are listed in chronological order: (i)City of Boerne v. Flores, Archbishop of San Antonio, et al. (1997); (ii)Gonzales v. Raich, 545 U.S. 1 (2005); (iii)Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418 (2006); (iv)Medellin v. Texas, 552 U.S. 491 (2008); and (v)Obergefell v. Hodges, 576 U.S. 644 (2015).
Boerne v. Flores:
After 1994, the RFRA / AIRFAA regimen continued as the free exercise status quo until City of Boerne v. Flores, Archbishop of San Antonio, et al. (1997). 2 This case arose after the Roman Catholic archbishop of San Antonio "applied for a building permit to enlarge a church in Boerne, Texas. When local zoning authorities denied the permit . . . the Archbishop brought this suit challenging the permit denial" (521 U.S. 507, Syllabus). The zoning authorities denied the permit based "on an ordinance governing historic preservation in a district which, they argued, included the church" (521 U.S. 507, Syllabus). Archbishop Flores based his case primarily on the RFRA. The "federal" District Court in which Archbishop Flores brought his case "concluded that by enacting RFRA Congress exceeded its enforcement power under §5 of the Fourteenth Amendment." (521 U.S. 507, Syllabus), and that RFRA was therefore unconstitutional when applied outside the "federal" jurisdiction. The District Court also certified its judgment as "interlocutory", meaning that it needed to be appealed and adjudged by a higher court. Archbishop Flores appealed to the 5th Circuit Court of Appeals, which reversed the District Court’s finding, and found instead that the RFRA was constitutional. The City of Boerne took the case to the supreme Court. The supreme Court "Held: RFRA exceeds Congress’ power." (521 U.S. 507, Syllabus), meaning that Boerne won and Flores lost. But the opinion has implications far beyond who won or who lost.
In some respects, the majority opinion can be understood to be another product of the Rehnquist Court’s inclination towards reviving the 10th Amendment. That agenda was towards reviving State’s rights, even if it meant repudiating "The powers . . . reserved . . . to the people". 3 This is clear by examining the way this opinion characterizes the facts in Boerne, and the way it characterizes the RFRA upon which Flores based his case. 4 The Court focused above all on §5 of the 14th Amendment. Before we examine §5, please remember (i)that Smith I would never have existed if the supreme Court had not granted Oregon certiorari; (ii)that it would probably have never granted certiorari if it had not been inclined to incapacitate free exercise incorporation for the sake of reviving the 10th Amendment; (iii)that the Oregon supreme Court’s application of the incorporated "federal" 1st Amendment was perfectly consistent with virtually all free exercise jurisprudence for the previous forty years, that is, under the de facto secular humanist establishment; (iv)that the supreme Court’s decision to grant certiorari in Smith I was a blatant exercise of "judicial activism"; (v)that without Smith I, Smith II would have never existed; and (vi)that without Smith II, the RFRA would have never existed. The RFRA makes it obvious in the "Findings" section that Congress passed the RFRA in response to Smith II. The opinion in Boerne says succinctly that "Congress enacted RFRA in direct response to Employment Div., Dept. of Human Resources of Ore. v. Smith, (494 U.S. 872)" (521 U.S. 507, Syllabus). With Boerne the Court returned the nation’s free exercise jurisprudence to its post-Smith, pre-RFRA status, with the exception that AIRFAA still stood undisturbed, 5 and with the exception that the RFRA still applied to the general government even while it ceased applying to the States.
In order to keep perspective, it’s important to remember that the 10th Amendment is a protection against the general government gone rogue. It protects the States and individuals against encroachment by the feds. On the other hand, the incorporation doctrine, at its best, extends the rights enumerated in the Bill of Rights to the States, sometimes against the collective will of the politicians running the States. It does this by way of the 14th Amendment’s sections 1 and 5. The following synopsis of Justice Kennedy’s majority opinion shows how:
In imposing RFRA’s requirements on the States, Congress relied on the Fourteenth Amendment, which . . . guarantees that no State shall make or enforce any law depriving any person of "life, liberty, or property without due process of law," or denying any person the "equal protection of the laws," §1, and empowers Congress "to enforce" those guarantees by "appropriate legislation," §5. . . . Although Congress certainly can enact legislation enforcing the constitutional right to free exercise of religion, . . . its §5 power "to enforce" is only preventive or "remedial," . . . The Amendment’s design and §5’s text are inconsistent with any suggestion that Congress has the power to decree the substance of the Amendment’s restrictions on the States. Legislation which alters the Free Exercise Clause’s meaning cannot be said to be enforcing the Clause. Congress does not enforce a constitutional right by changing what the right is. . . . There must be congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end. Lacking such a connection, legislation may become substantive in operation and effect. . . . The Amendment’s design has proved significant also in maintaining the traditional separation of powers between Congress and the Judiciary . . . RFRA is not a proper exercise of Congress’ §5 enforcement power . . . . (521 U.S. 507, Syllabus)
Crucial to Kennedy’s opinion is that incorporation of the Bill of Rights happens by way of the 14th Amendment § 1, which says the following:
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.
It’s critical to know that § 1 is accompanied by § 5, which says the following:
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
The Free Exercise Clause of the 1st Amendment is one part of the Bill of Rights that has been incorporated to the States by way of the 14th Amendment § 1. Because the Bill of Rights in general is largely a partial enumeration of natural rights that should have been recognized as applying to the States from the founding era, but wasn’t (largely because the 10th Amendment was interpreted to be an obstacle to such incorporation, largely because the interpreters wanted to defend slavery, but also because they were defending the principle of local control), the Free Exercise Clause should certainly be incorporated. It was in fact incorporated by the series of free exercise cases that produced the free exercise strict scrutiny (meaning the Sherbert-Yoder doctrine) that Scalia’s opinion in Employment Division v. Smith demolished. Congress attempted to restore free exercise strict scrutiny via RFRA. But Kennedy’s opinion in Boerne used a technicality to prevent that restoration. The technicality was that by turning the Sherbert-Yoder doctrine into a statute applicable to the States, Congress was, in the opinion of the Court, exceeding the preventive and remedial nature of the 14th Amendment § 5 by making a substantive change to the 14th Amendment. In other words, Congress was essentially amending the Constitution unconstitutionally (something that the courts do on a regular basis). The supreme Court’s majority essentially reprimanded Congress for exceeding its authority and violating the separation of powers doctrine in the process. They thereby prevented the restoration of the incorporation of free exercise strict scrutiny. Strict scrutiny, by itself, certainly isn’t a sure defense of free exercise, but it’s better than the belief-action doctrine that prevailed between Smith (1990) and RFRA (1993).
The Kennedy opinion essentially said that Congress exceeded its power under 14th Amendment § 5 by making the RFRA applicable to the States. There may be an element of truth to this claim. But if the supreme Court were acting in good faith, it would have acknowledged that Congress was violating the separation of powers to some extent by making RFRA applicable to the States, while it simultaneously reaffirmed free exercise incorporation. Essentially, that majority opinion emphasized the separation of powers, meaning that Congress had overstepped its authority by mandating that the judiciary apply the compelling interest test to the States in free exercise cases. While negating RFRA’s applicability to the States on the grounds (i)that Congress had exceeded the preventive and remedial nature of § 5, and (ii)that Congress had violated the separation of powers doctrine by telling the Court how to do its job, the Court did nothing to resurrect free exercise incorporation from its post-Smith impotence.
It’s imperative to see this case from the perspective of the hermeneutical prologue’s metaconstitution. That perspective holds that both the general government and the States are secular social compacts. It holds that the only purpose of any secular social compact is to uphold the secular religion. The secular religion consists of essentially three clauses from Genesis 9:6. The three clauses can be paraphrased like this: (1)No human should ever shed the life of another human. (Doing so is called bloodshed.) There must be proportional penalties in human law for doing so, meaning that those penalties are mandatory. (2)Any human who witnesses the perpetration of bloodshed is responsible for executing justice against the perpetrator. But there are no mandatory penalties in global human law to be imposed on people who refuse to execute proportional justice. (3)The reason bloodshed is prohibited is because all human beings are created in the image of God. — Although the biblical rendition of the secular religion holds that all people are created in the image of God, it does not mandate that all people believe this, evidenced by the fact that there is no human-law penalty in Genesis 9:6 for people who refuse to believe that all people have the imago Dei. Also, although the biblical rendition of the secular religion holds that all acts of bloodshed should be penalized in global human law, a person’s refusal to execute such a penalty, or to participate in the execution of such justice, is not inherently penalizable in global human law. In summary, the secular religion holds that there are three things that are fundamental to global human law: (i)The negative duty says, "Don’t perpetrate bloodshed against anyone, where bloodshed is defined in terms of private property, where one’s ownership of one’s body is most fundamental, it being primary property, and where private property has the capacity of including secondary property." (ii)The positive duty says, "You should execute justice against anyone who perpetrates bloodshed." (iii)The motive clause says that the reason that people should conform to the negative duty and the positive duty is because all people have the imago Dei. All three of these are moral essentials. But only the first duty, the negative duty, is inherently enforceable as human law because it demands that a penalty be executed by other humans. The other two are voluntary, and therefore become human law only when they become obligatory in human contracts.
With those fundamentals of the secular religion outlined, it’s possible to re-focus on this case from that perspective. Given that the Roman Catholic Church had clear title to its property in Boerne’s historical district, for the municipality to put unwelcomed encumbrances on that property constituted bloodshed from the hermeneutical prologue’s perspective. The municipality may have had what it thought were good reasons for imposing such encumbrances. But the fact is that the city, like the State and like the general government (because it was and is inherently religiously pluralistic), was and is inherently a secular social compact. As such, the municipality was ultra vires when it imposed zoning laws, when it demanded building permits, and when it classified the church as existing in a "historic preservation" district over which it claimed to exercise such extraordinary power. The municipality was and is jurisdictionally dysfunctional, and that dysfunction characterized the city’s power in this case. In fact, United Nations Agenda 21 (now Agenda 2030) encouraged municipalities to exercise such unlawful power. This case was therefore an example of how the supreme Court was and is essentially cooperating with the UN in the promotion of global consolidation.
In this case, the supreme Court was essentially straining gnats and swallowing camels. It violated the Archdiocese of San Antonio’s free exercise of its religion, and did so by refusing to insist on the incorporation of the free exercise clause. Strict scrutiny and the compelling interest test may be poor substitutes for the actual exercise of the secular religion, but they’re better than the belief-action doctrine. Insisting on the application of the Sherbert-Yoder test by way of the RFRA would have been better than insisting that free exercise had not been incorporated to the States.
Under the jurisprudence that derives from the hermeneutical prologue, zoning is lawful only in a religious social compact, and not under the direct jurisdiction of a secular social compact. That’s because prior consent to zoning laws is a necessary prerequisite to their being lawful. No such unanimous consent is even remotely likely under a secular social compact. Secular government essentially assumed such prior consent without bothering to procure it. The City of Boerne, like most (if not all) municipalities in the united States, presumed that it did not need the prior consent of inhabitants, including the Archbishop of San Antonio. But to avoid perpetrating bloodshed in this case, the city was obligated to procure the Archbishop’s prior consent to operate by such municipal ordinances.
The scope of legislation that is the lawful outgrowth of the Constitution cannot be municipal, i.e., it cannot pertain to the full range of religious police powers. In our view, the scope of legislation that is lawful is necessarily confined to secular police powers. But in the view of the Court, then and now, the scope of legislation is merely precluded – in the "federalist" mentality – from overlapping the "traditional prerogatives" of the State. Legislation that was municipal, more specifically, that covered "the whole domain of rights", would be inherently invalid under a secular social compact because it would generate religious police powers that are inherently invalid when exercised by a secular social compact, and only valid when exercised by a religious social compact. The general government has never been a valid religious social compact, and cannot therefore lawfully exercise religious police powers.
Anything that Congress does under §5 to expand its enforcement of the global mandate against bloodshed is lawful, even if it violates traditional views of State’s rights, as long as it recognizes that it more-than-likely doesn’t have original jurisdiction with regard to delicts, because the State, county, city, etc., are more likely to have original jurisdiction. Anything that Congress does under presumed §5 authority that is not prompted by this global mandate against delicts, and is outside the bounds of the professed consensual nature of the American social compact, is itself an act of bloodshed, and turns Congress into a criminal.
We’re convinced that the Court’s interpretation of the 14th Amendment has gone a long way towards turning the States into administrative provinces of the nationally consolidated government. Incorporation of the Bill of Rights by way of the 14th Amendment has certainly been a good thing. But the general government, with the Court’s help, has incorporated to the States far more than the Bill of Rights, mostly by way of its warped interpretation of the Commerce Clause. Because of the necessity for preserving the State jurisdictions after such jurisdictions were so thoroughly damaged by the "Civil War" national consolidation, it was necessary to make some extraordinary efforts at preserving such State jurisdictions. So, generally speaking, the generation of leaders that ratified the 14th Amendment believed that "The power to ‘legislate generally upon’ life, liberty, and property, as opposed to the ‘power to provide modes of redress’ against offensive state action, was ‘repugnant’ to the Constitution." (521 U.S. 507, Kennedy’s Part III-A-2). Kennedy’s opinion here shows that his categories are inadequate to manifest the secular religion. "[L]ife, liberty, and property" is a category so general that it includes both bloodshed, the subject matter jurisdiction of the secular social compact, and municipal laws, the subject matter jurisdiction of the religious social compact. Kennedy is right to see § 5 authority as eschewing such a grand subject matter. But to fail to see precisely what § 5 must encompass under the secular religion, namely bloodshed, amounts to an insistence on the "traditional prerogatives" of the State, meaning a return to the State’s rights of the antebellum era. This strained understanding of the 14th Amendment has led to the jurisdictional dysfunction that characterizes almost the entire social superstructure of the united States at this writing.
The lawyers for the City of Boerne emphasized that in its pre-RFRA deliberations, Congress had failed to show that the RFRA was remedial. The lawyers did this by showing that "Congress had not proven that government was hostile toward religion." 6 This failure by both Congress and Flores’ team to show that RFRA was designed to remedy a known harm is crucial to their failure to prove their case. 7 The harm that RFRA could potentially address is the failure by all the secular governments in this country to properly and reasonably define the distinction between lawful secular police powers and religious police powers. This failure leads to "incidental burdens" on everyone’s religion. — If the RFRA legislative hearings and the Boerne Court had insisted on a rational definition of "religious", they would have looked themselves squarely in the mirror and seen that most of the positive law in the general and State governments are religious, meaning that they are establishment of a witch’s brew of secular humanism and nominal Christianity. The Court has a pathetic definition of religion. If it had a robust definition, it would readily recognize that the "federal" government is violating religions across the board.
Congress and the courts worked together to change the plain meaning of the money clauses, the commerce clause, and numerous other parts of the Constitution. But the Court has sometimes worked alone to usurp the Constitution. For example, they changed the plain meaning of the free exercise clause when they created the belief-action doctrine in Reynolds v. U.S.. The Court started trying to repair the damage they had done starting with Cantwell v. Connecticut. When Smith came along, they threw away all the advances they had made since Cantwell, and they returned to the belief-action distortion of the plain meaning.
Even if Congress had provided ample evidence that there was real harm that RFRA was aimed at remedying or preventing, RFRA was still nevertheless vulnerable to being accused of being substantive due to the fact that it would in effect be establishing religions willy-nilly. 8 RFRA had the capacity to manufacture exemptions to neutral, generally applicable laws. RFRA had this capacity whenever a religion was "incidentally burdened". This establishment process was not central to Boerne’s case because Flores never presented meaningful evidence that a harm / "incidental burden" existed. Without an incidental burden the harm-exemption-establishment chain was broken. Even so, it’s important to understand that incidental burdens virtually never exist except when they are created by bad laws. A bad law is any law that creates a police power that is non-consensual. Bad laws exist so prolifically that from the hermeneutical prologue’s perspective, governments are perpetrating incidental harm against a multitude of religions. The "incidental harm" that Boerne perpetrated against the archdiocese was that Boerne arbitrarily (under the guise of historical preservation) coerced that particular Roman Catholic church to abdicate its right to do with its property whatever it thought best. The district court and the supreme Court agreed that this burden arising out of a generally applicable law didn’t deserve an exemption. All the other property owners in Boerne’s historical district had to suffer a similar municipally imposed encumbrance. So the harm wasn’t against the religion, per se, according to these courts. So in their opinion, the RCC had failed to articulate a harm against its religion. So Kennedy and company saw this failure to articulate harm as another motive to repudiate RFRA.
Here Kennedy and company get lost in the weeds. If government damages someone’s property without intending to, the damaged party is nevertheless equally as damaged as he / she would be if government had malice. So whether the delict is intentional or "incidental" is tangential, not crucial. Whether the delict exists is the real issue. Admittedly, Flores failed to prove the existence of extraordinary harm against his religion. But the fact that the Court failed to look any harder for such harm, such delicts, testifies to how callous the mega-state has become. The secular governments in this country constitute a proverbial bull-in-a-china shop. It is precisely the kind of brutish governance foreseen by those framers who spoke carefully about a confederate republic as opposed to a national consolidation, and who feared centralized government that was too far away from where people lived.
The fact that harm existed even though Flores failed to prove it as a function of the 14th Amendment wasn’t something the Court should have ignored. Harm to religions is everywhere. It’s true that those happy with the state-religion – i.e., with the witch’s brew of secular humanism and nominal Christianity – generally ignore this multitude of "incidental" harms. Those who are not so happy with the state-religion, but who are convinced that preservation of the compact theory of government is important, owe a measure of "Thanks!" to the Court. The Court has preserved the compact theory to some extent by preserving a semblance of State’s rights. But there’s a big problem with this. The problem is that they’ve been preserving State’s rights at the expense of "The powers . . . reserved . . . to the people.". This is precisely what the pre-"Civil War" compact did by allowing States to legalize turning human beings into other people’s property.
The "States’ traditional prerogatives and general authority to regulate for health and welfare of their citizens" is inherently unlawful, because the States are not lawfully religious social compacts. In this case, the "intrusion" of the general government into the "traditional prerogatives" of the State would have been appropriate if the States were lawful secular social compacts and if the general government intruded solely to execute justice against that delict. The State’s "traditional prerogatives" stink, because they allow the State to exercise municipal authority that is lawful only under a religious social compact.
If the Court had a reasonable definition of religion, it would necessarily admit that the injuries are huge, and the harm is real. Because of the looming menace that the majority perceives – its feared parade of horribles – the majority claims that "RFRA’s most serious shortcoming . . . lies in the fact that it is so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior." (521 U.S. 507, Syllabus). They clearly don’t understand the damage that needs to be remedied and prevented. They need to stop following the mob in doing evil long enough to see the evil that demands of them an immediate remedy. This evil is a black plague of government-sponsored repudiation of religions. If O’Connor’s demand to reinstate strict scrutiny in free exercise were to prevail, the majority is convinced that chaos would result. They must keep their teeth clinched and their fists taut against the rabble at the gate. — If this situation persists, and if history repeats itself, the result will be more Tower of Babel, and another collapse. — In the same way that the Court returned free exercise jurisprudence from the status quo immediately before Smith to the status quo during the Reconstruction-era (i.e., belief-action doctrine), in Boerne, it was returning congressional power from the status quo before RFRA to its Reconstruction-era status. 9 It was doing this in the name of State’s rights and "federalism", and was relegating the "powers . . . reserved . . . to the people" to oblivion, in the same way that the slave-era and the Reconstruction-era both did.
The supreme Court’s posture in Boerne is more evidence that the Court is claiming sole power to determine what the substance of the Constitution is, as though it were the nation’s sovereign. According to the supreme Court, through the doctrine of judicial review, the supreme Court, and only the supreme Court, has final say about the meaning of the Constitution. This claim appears in numerous cases starting with Marbury v. Madison (1803). In Cooper v. Aaron the Court claimed that "the federal judiciary is supreme in the exposition of the law of the Constitution". Does this mean that the Court is sovereign? — In a reliable compact theory of government, governments are built based on consent, not based on brute power. So when anyone claims power it’s critical for everyone hearing the claim to consider whether they will consent to the claim, and acquiesce to the power, or not. Consent by the single, individual human being is the only lawful basis for consensual government. So the nation’s sovereign is the collective consent of its citizens. To the extent that the supreme Court’s claim is consistent with this definition of sovereignty, their claim is valid. After all, the legal buck has to stop somewhere. But that doesn’t mean that anyone is obligated to acquiesce to bad laws, even if the supreme Court claims they are good laws.
Because Congress failed to point to the real harm being done nationwide by non-consensual police powers, and because Congress pointed instead to Smith as the harm RFRA was supposed to remedy, and because this elevated Congress into being a court of last resort, and because Congress elevating itself above the supreme Court violated the separation of powers doctrine, and because of all the problems indicated above with respect to the limit on Congress’s §5 enforcement power, the Court had ample ammunition to do what it was already predisposed to do: rule RFRA unconstitutional as applied to the States. 10
If the meaning of the free exercise clause is simply the plain, face value meaning of what was written in the original 1st Amendment, the meaning is this: If any secular government lays a burden on any religion, they’d better have a compelling reason for doing so. Clearly, RFRA is much closer to the original meaning than the belief-action doctrine that is in essence the Smith rule.
The "New Deal" in the 1930s nullified the 10th Amendment, 11 and with it, State’s rights. After being long dormant, State’s rights and the 10th Amendment were revived in National League of Cities v. Usery (1976). But the Usery decision was reversed in Garcia v. San Antonio Metropolitan Transit Authority (1985), again leaving the 10th Amendment a nullity. In Boerne, the Court again attempted to revive State’s rights and, by implication, the 10th Amendment. — The big problem with all this haggling over the 10th Amendment is that virtually no one in power is watching out for "The powers . . . reserved . . . to the people". This perversion of the free exercise clause is further evidence that neither the secular general nor the secular State governments care even modestly for "The powers . . . reserved . . . to the people". What can one think, except that it’s essential for the people themselves to demand those powers, because the established government will not.
This "federalism" project to which the Rehnquist Court was committed is essentially a process of devolving power from the general government to its administrative provinces. This process, by itself, does little or nothing to ensure protection of unalienable Rights. This is because the State administrative provinces, being inherently secular social compacts, are no more qualified to exercise "powers . . . reserved . . . to the people" (10th Amendment) than the general government is. 12
By claiming that the RFRA was "a considerable congressional intrusion into the States’ traditional prerogatives and general authority to regulate for the health and welfare of their citizens." (521 U.S. 507, Kennedy’s Part III-B), the majority was in essence insisting that the States are religious social compacts. 13 When the Court insists that the States have religious police powers (i.e., "general authority to regulate for . . . health and welfare"), this conflicts diametrically with the fact that the States are secular, i.e., that they govern a diversity of religions. — The majority claimed that "The substantial costs RFRA exacts, both in practical terms of imposing a heavy litigation burden on the States and in terms of curtailing their traditional general regulatory power, far exceed any pattern or practice of unconstitutional conduct under the Free Exercise Clause as interpreted in Smith." (521 U.S. 507, Kennedy’s Part III-B). In other words, the Court claims that the States’ role in the nationally consolidated Welfare State – as administrative provinces, and in exercising "powers . . . reserved to the States" under the 10th Amendment – is far more important than the "powers . . . reserved . . . to the people", 14 or the "rights . . . retained by the people" (9th Am.). 15 As was the case before the War Between the States, the Court is protecting State’s rights at the expense of individual rights. If States were lawful religious social compacts, then this might be justified. But they aren’t. Before the War Between the States, the supreme Court protected slave owners who treated human beings as chattel. Now, the supreme Court is protecting mega-government’s ownership of its human chattel, for all citizens are wards of the Welfare mega-state, and of the corporate-state alliance that characterizes fascism and totalitarianism.
In O’Connor’s dissenting opinion in Boerne, speaking of the framers, she claimed that "the right to free exercise was viewed as generally superior to ordinary legislation, to be overridden only when necessary to secure important government purposes." (521 U.S. 507, O’Connor’s Part II-C). As part of her evidence, she quoted James Madison:
This duty [owed the Creator] is precedent both in order of time and degree of obligation, to the claims of Civil Society. . . . [E]very man who becomes a member of any Civil Society, [must] do it with a saving of his allegiance to the Universal Sovereign. We maintain therefore that in matters of Religion, no man’s right is abridged by the institution of Civil Society, and that Religion is wholly exempt from its cognizance. 16
"To Madison, then duties to God were superior to duties to civil authorities – the ultimate loyalty was owed to God above all. . . . The idea that civil obligations are subordinate to religious duty is consonant with the notion that government must accommodate, where possible, those religious practices that conflict with civil law." (521 U.S. 507, O’Connor’s Part II-E) She continued in this vein by quoting George Washington. "George Washington expressly stated that he believed that government should do its utmost to accommodate religious scruples, writing in a letter to a group of Quakers:" (521 U.S. 507, O’Connor’s Part II-E)
[I]n my opinion the conscientious scruples of all men should be treated with great delicacy and tenderness; and it is my wish and desire, that the laws may always be as extensively accommodated to them, as a due regard to the protection and essential interests of the nation may justify and permit. (521 U.S. 507, O’Connor’s Part II-E) 17
O’Connor’s last quote is again from Madison:
‘[T]he equal right of every citizen to the free exercise of his Religion according to the dictates of [his] conscience’ is held by the same tenure with all our other rights. . . . [I]t is equally the gift of nature; . . . it cannot be less dear to us; . . . it is enumerated with equal solemnity, or rather studied emphasis. (521 U.S. 507, O’Connor’s Part II-E) 18
According to O’Connor, "all agreed that government interference in religious practice was not to be lightly countenanced. . . . [A]ll shared the conviction that ‘true religion and good morals are the only solid foundation of public liberty and happiness.’" (521 U.S. 507, O’Connor’s Part II-E). 19 In other words, human law, by itself, never suffices to produce "true religion and good morals" or "public liberty and happiness". — It’s interesting to note that religious leaders during the founding era were generally even more consonant with the principle of free exercise than were the political leaders. For example, "Isaac Backus, a Baptist minister who was a delegate to the Massachusetts ratifying convention of 1788, declared that ‘every person has an unalienable right to act in all religious affairs according to the full persuasion of his own mind, where others are not injured thereby.’" (521 U.S. 507, O’Connor’s Part II-E). 20 — In her concluding remarks, O’Connor stated that "Our Nation’s Founders conceived of a Republic receptive to voluntary religious expression, not of a secular society in which religious expression is tolerated only when it does not conflict with a generally applicable law." (521 U.S. 507, O’Connor’s Part III). Contrary to O’Connor’s claim, when understood from the perspective of our metaconstitution, "Our Nation’s Founders conceived of a Republic receptive to voluntary religious expression", and of a secular society in which religious expression is always tolerated except when such expression constitutes bloodshed.
Stare decisis is a legal doctrine holding that courts should abide by settled decisions in previous cases, whenever the circumstances of cases are equivalent. This doctrine, in the view of the legal profession in general and of the judiciary in particular, has a standing equal with the organic Constitution. — This is very similar to the claim by Rabbinical Jews that the Talmud, the interpretive commentaries on the Tanakh (the Old Testament), has a standing equal with the Tanakh itself. It is also very similar to the claim by Roman Catholics that their church traditions have an equal standing with the Bible. — Following tradition instead of holding Scripture to be the beginning and end in the development of a clear, conscientious vision of reality, is in essence "following a mob in doing evil" (Exodus 23:2) — We believe that the organic Constitution should be more highly esteemed than case law, or statutory law, and even more than the supreme Court’s opinions. This is because the supreme Court has been wrong about so much.
Stare decisis is an important source of societal stability. But when it becomes obvious to all but the most obtuse that stare decisis with regard to some specific issue is little or nothing more than following a mob in doing evil (Exodus 23:2), then stare decisis must give way to doing the right thing.
In his concurring opinion in Boerne, Justice Stevens claimed that RFRA "is a ‘law respecting an establishment of religion’ that violates the First Amendment". 21 He claimed that
If the historic landmark on the hill in Boerne happened to be a museum or an art gallery owned by an atheist, it would not be eligible for an exemption from the city ordinances that forbid an enlargement of the structure. Because the landmark is owned by the Catholic Church, it is claimed that RFRA gives its owner a federal statutory entitlement to an exemption from a generally applicable, neutral civil law. Whether the Church would actually prevail under the statute or not, the statute has provided the Church with a legal weapon that no atheist or agnostic can obtain. This governmental preference for religion, as opposed to irreligion, is forbidden by the First Amendment. Wallace v. Jaffree, 472 U.S. 38, 52 -55 (1985). (521 U.S. 507, Stevens’s opinion)
In our view, there is no such thing as an "irreligion" because religion is defined in terms of belief systems, and an "irreligion" is as much a belief system as a religion. Even though Stevens’s concern about establishment is bogus in this regard, the concern about establishment is well founded on other grounds. Concern about establishment is true in this sense: Any religion that receives an exemption from a neutral, generally applicable law, by way of RFRA (or by way of any other law) is established to a degree because it’s exemption is a violation of the equal protection clause. Since RFRA actively promotes such exemptions, it is in essence a "law respecting an establishment of religion". — In effect, the Coalition for the Free Exercise of Religion (CFER) was a coalition of religions who wanted to be collectively established as the mega-state’s religion. They each wanted their tax-exempt status and their government freebies. If the jurisprudential status quo were not obsessed with the exercise of non-consensual police powers, these religions would be immune to such accusations as these.
Even though Rehnquist’s majority decision in National League of Cities v. Usery (1976) was overruled in Garcia v. San Antonio M.T.A. (1985), his court’s defense of State’s rights continued not only in Boerne, but in several subsequent cases as well. "On the last day of its 1998-1999 term, the U.S. Supreme Court issued a trio of rulings on federalism that significantly cut congressional power. The decisions concerned state challenges to federal legislation that allowed citizens to initiate private lawsuits against states in state courts. In each case, the Court ruled against Congress and in favor of protecting the states." 22 The three cases were Alden v. Maine, Florida v. College Savings Bank, and College Savings Bank v. Florida. "The three cases follow a trend of decisions, beginning in 1992 . . . , where the U.S. Supreme Court has cut back congressional power. In . . . 1996 the Court handed down Seminole Tribe of Florida v. Florida, ruling that Congress was prevented under the Eleventh Amendment from allowing American Indian tribes to sue states. . . . In 1995 the Court decided United States v. Lopez where it invalidated the ‘Gun-Free Zones Act,’ ruling for the first time in six decades that Congress exceeded its authority under the interstate commerce clause." 23 Practically anything that reduces Congress’s megalomaniacal abuse of the commerce clause is a good thing. Nevertheless, returning such power to the States, rather than to the people, is a huge mistake. The Rehnquist Court’s propensity "to cut back federal power and devolve it back to the states" had huge problems, and so does any judge following the same inclination. 24 The most ominous of these cases that defend State’s rights at Congress’s expense were cases that defend sovereign immunity. Sovereign immunity essentially says that State officials can operate under color of law with impunity. In a lawful secular social compact, no one is above the law, not even the artificial person that each State is.
When Justice Kennedy said that RFRA’s
Sweeping coverage ensures its intrusion at every level of government, displacing laws and prohibiting official actions of almost every description and regardless of subject matter. RFRA’s restrictions apply to every agency and official of the Federal, State, and local Governments. . . . RFRA applies to all federal and state law, statutory and otherwise, whether adopted before or after its enactment. . . . Any law is subject to challenge at any time by any individual who alleges a substantial burden on his or her free exercise of religion. (521 U.S. 507, Kennedy’s Part III-B).
Kennedy was in essence citing Scalia’s "parade of horribles". 25 He was in essence indicating that if people in this country truly have free exercise, secular government will collapse. 26
The author of the "parade of horribles", Justice Scalia, wrote a concurring opinion in Boerne that was aimed specifically at debunking O’Connor’s claim that "historical materials support a result contrary to the one reached in" Smith (521 U.S. 507, Scalia’s Introduction). 27 Scalia’s opinion is an example of what obtuse rationalizations result when positive law is esteemed to the exclusion of morality. It’s reminiscent of the callous disregard for rights that the Court displayed in the Dred Scott Case (1857). Scalia summed up his position succinctly: "Religious exercise shall be permitted so long as it does not violate general laws governing conduct." (521 U.S. 507, Scalia’s concurrence). — What if the "general laws" are evil? As religious people, are we supposed to abide by them? — Scalia claimed that "the background political philosophy of the age [of the founding] (associated most prominently with John Locke), . . . regarded freedom as the right ‘to do what was not lawfully prohibited’" (521 U.S. 507, Scalia’s concurrence). It’s true that "the background political philosophy of the age . . . regarded freedom as the right" to do what was lawful, i.e., to do what was not lawfully prohibited. But there is a distinction between what is lawful and what is legal, and Scalia apparently conflated the two. The word lawful has a moral content that legal lacks. But here Scalia was using the word "lawfully" as though it was equivalent to the word "legally". According to our metaconstitution, lawful pertains to what is morally sound according (i)to a moral system that’s based on natural law and/or divine law, and (ii)to what is legal according to human law that is rationally consistent with such moral system. Legal pertains strictly to positive human law. Scalia was confusing (probably intentionally) what is lawful with what is legal, in his concurring opinion. So "the background political philosophy" of the founding era regarded freedom as the right to do what was not lawfully prohibited, meaning prohibited by human law that is consistent with the hermeneutical prologue’s metaconstitution.
We are convinced that the government of the Union was conceived to be interdenominational, not secular. We believe that by necessity, the Union must be not only interdenominational, but also interreligious. 28 We believe that the religion clauses of the Constitution were adopted (i)to keep one religion from dominating all the others and (ii)to keep minority religions from being abused by the secular government. Scalia’s position is essentially giving States license to establish a witch’s brew of secular humanism and nominal "Christianity" as State religion, and to abuse whatever minority religions may exist in a given State to whatever extent the State chooses. Scalia ends his concurring opinion with a veiled claim that he is facing reality straight on, while the minority is living in a utopian dream world. He says, "Who can possibly be against the abstract proposition that government should not . . . place unreasonable burdens upon religious practice? Unfortunately, however, that abstract proposition must ultimately be reduced to concrete cases." (521 U.S. 507, Scalia’s concurrence). In other words, he can’t see how religious freedom is practical. Tyrants never see how individual liberty is practical. The rest of us know that freedom is an unalienable Right, and we understand that such rights are even more basic to who we are as human beings than our genetic composition, or our need for social order, or our obedience to social compacts. Denial of such basic facts of life is not practical.
The parade of horribles that Scalia, Kennedy, and company envisioned derives entirely from the existence of a plague of laws that are each jurisdictionally dysfunctional. By not understanding that the general government, the States, counties, and municipalities in the united States are each a secular social compact, each of these entities fails to properly enforce the secular religion. Under these circumstances, these bad laws are imposed by secular governments without the express "consent of the governed". 29 This company of justices rightly saw big and serious problems for the regime they were committed to supporting, by allowing the extensive free exercise that RFRA might have enabled. 30 As Kennedy put it,
Requiring a State to demonstrate a compelling interest and show that it has adopted the least restrictive means of achieving that interest is the most demanding test known to constitutional law. If "‘compelling interest’ really means what it says . . . many laws will not meet the test. . . . [The test] would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind." (521 U.S. 507, Kennedy’s Part III-B). 31
"Claims that a law substantially burdens someone’s exercise of religion will often be difficult to contest." (521 U.S. 507, Kennedy’s Part III-B) That’s because the answer to this question is obvious: "‘What principle of law or logic can be brought to bear to contradict a believer’s assertion that a particular act is "central" to his personal faith?’" (521 U.S. 507, Kennedy’s Part III-B). 32 Our answer: A jurisprudential Ockham’s Razor: Does the act involve bloodshed, including violation of prior consent?
The Court painted itself into a corner. If it had said NO to all this accumulation of religious police powers by the general and State governments many decades ago, it would not have been looking at an overwhelming situation in 1997. Now there is indeed a very real problem with maintaining the Welfare State, and simultaneously guaranteeing every inhabitant their unalienable Right to free exercise. Either religious freedom must go, or the Welfare State must go. Either national consolidation must morph into global consolidation, or the national consolidation must be dismantled in a genuine installment of the secular religion. So here are the options: (i)Grant free exercise without any accompanying effort at eliminating jurisdictional dysfunction, and watch the parade of horribles drive the nation into ruin. 33 (ii)Deny free exercise and have a full-blown police state. (iii)Get rid of all the religious police powers that now exist under the immediate jurisdictions of secular governments; restrict secular governments to secular police powers; eliminate all non-consensual positive laws. — Neither of the first two options is practical, or palatable, even though, at this writing, the second appears to be the nation’s chosen path. The third option is obviously radical, and inevitably requires effort, time, and coordination to pull off. This is because it requires that most of the population be weaned off the Welfare State. Practically everyone from food-stamp recipients, to Social-Security beneficiaries, to recipients of "corporate welfare", to recipients of educational grants, to Medicare recipients, to bureaucrats of every stripe and color, to banks, to government workers of every kind, to real estate developers, to home equity owners, to recipients of every conceivable privilege of secular government, is prone to kick, scream, and throw tantrums at the prospect of being deprived of their largesse from the secular udder. Very few of them will volunteer to be weaned off Welfare. So this third option also sounds like it won’t work. But regardless of the effort required, logic says it’s the only way.
After Boerne v. Flores and the demise of the RFRA’s applicability to the States, the coalition that lobbied for the RFRA (CFER) restructured itself to pursue the free exercise goal by other means. 34 It initially rewrote the RFRA in the form of the Religious Liberty Protection Act (RLPA), and attempted to lobby Congress on its behalf. But after Boerne, many members of the coalition left it because Boerne convinced them that Scalia’s parade of horribles was not merely imaginary, but real. 35 For example, the American Civil Liberties Union (ACLU) left the coalition when it realized that RFRA / RLPA would allow religious landlords to refuse to accept homosexual tenants. Other coalition members left the coalition because they, like the ACLU, saw that their access to the Welfare udder might be eliminated if RLPA became law. — The RLPA failed to become law.
After Boerne, the coalition’s objective became the passage of State-level RFRAs. 36 Since the supreme Court left open the possibility that each State could adopt its custom version of the RFRA – patterned after the "federal" RFRA – the coalition turned to focus on that goal. But State RFRAs have the same problems that the "federal" RFRA has. State judges – just as much as judges of the general government – typically conceive of their jobs as protectors of the existing government’s turf. Welfare / Regulatory / Administrative bureaucracies – and all the legal accoutrements that support them – represent a huge amount of government power. Human history makes it unavoidably obvious that governments almost never voluntarily surrender power, or give up turf. Scalia, Kennedy, and company represent an almost uncontrollable inclination to refuse the surrender, by government, of power to people outside the existing power structure. In other words, people in power rarely volunteer to give up power. — If ordinary people get to do whatever they like – as long as it’s not bloodshed – then secular governments, including State governments, are reduced to the relatively narrow jurisdictions defined by lawful secular social compacts. This is a huge reduction in the size of government. Officials don’t want to give people this kind of freedom because doing so entails relinquishing all the powers – State, "federal", and otherwise – with which these Welfare / Regulatory / Administrative governments are now bloated. But the fact is that this freedom is not theirs to give. It is unalienable, given by God. To think otherwise is to defend tyranny. So the problem with State RFRAs is the same as the problem with the "federal" RFRA after the incorporation doctrine has been removed from consideration. After Boerne, some States have passed RFRAs. But judges at State and local levels will almost inevitably be prone to reject State RFRAs on the same parade-of-horribles grounds. 37 That propensity explains why State RFRA litigation has been relatively sparse in the decades since Boerne. Governments hate relinquishing power at all levels. — Clearly, our nation, at every level, is taking option (ii): Deny free exercise, and have a full-blown police state. And the general population has been snoring on.
Here is evidence that RFRA still applies to the general government, even though it doesn’t apply to the States:
In City of Boerne, this Court invalidated RFRA as applied to States and their subdivisions, holding that the Act exceeded Congress’ remedial powers under the Fourteenth Amendment. (Ginsburg’s majority opinion in Cutter v. Wilkinson (03-9877) (2005), Part IA.)
The endnote attached to this statement clarifies: "RFRA, Court of Appeals have held, remains operative as to the Federal Government and federal territories and possessions. . . . This Court, however, has not had occasion to rule on the matter." Even though it was certainly true in 2005 that the supreme Court had not had occasion to rule on the applicability of RFRA in "federal" territories, subsequent cases, for example, Gonzales v. U.D.V. (2006) (See below.), certainly relied on the "federal" RFRA.
Within about three years after Boerne, an act of Congress amended the RFRA so that it no longer presumed to apply to States, but only to general jurisdictions, including "federal" territories.: "Section 6(a) of the Religious Freedom Restoration Act of 1993 (42 U.S.C. 2000bb-3(a)) is amended by striking ‘and State’." 38 With the exception of the general government and States that have implemented their own customized versions of the RFRA, the Smith belief-action rule still pertains. The belief-action doctrine still pertains in States that don’t have their own RFRA, and free exercise incorporation remains at half-mast.
Gonzales v. Raich:
In 1996, California voters passed the "Compassionate Use Act", Proposition 215. The act authorized the use of marijuana for medicinal purposes. This act inherently conflicted with the general government’s laws limiting the use of marijuana. After passage of the act, two California residents, Angel Raich and Diane Monson, were using marijuana as a medicine to alleviate serious medical conditions.
On August 15, 2002, county deputy sheriffs and agents of the federal Drug Enforcement Administration (DEA) came to Monson’s home. After a thorough investigation, the county officials concluded that her use of marijuana was entirely lawful as a matter of California law. Nevertheless, after a 3-hour standoff, the federal agents seized and destroyed all six of her cannabis plants.
Respondents thereafter brought this action against the Attorney General of the United States and the head of the DEA seeking injunctive and declaratory relief prohibiting the enforcement of the federal Controlled Substances Act (CSA), 84 Stat. 1242, 21 U.S.C. § 801 et seq., to the extent it prevents them from possessing, obtaining, or manufacturing cannabis for their personal medical use. (Gonzales v. Raich, 545 U.S. 1 (2005), Steven’s majority opinion, Pt. I)
Raich and Monson challenged the Controlled Substances Act (CSA) primarily on Commerce Clause grounds. To understand this case within the context of the hermeneutical prologue’s metaconstitution, it’s necessary to understand how the general government procured its claimed subject matter jurisdiction over what people eat, drink, smoke, inject, or take in by some other means. Through this case’s majority opinion, Congress is allowed to prohibit the use of marijuana even in States that legally approve its use for medicinal purposes. How consistent is this with the founding document’s claim that all people have unalienable Rights to life, liberty, and the pursuit of happiness? To understand these "federal" claims to such power and authority within the context of American history, it’s necessary to understand both what has happened in American history and what the hermeneutical prologue’s metaconstitution says about such claims.
From the hermeneutical prologue’s perspective, it’s undeniable that the general government is now and always has been inherently a secular social compact. This is because the organic documents indicate so plainly, (i)that the general government "shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof"; and (ii)that "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these, are Life, Liberty, and the pursuit of Happiness." The metaconstitution interprets these to mean that the general government has a commitment to the secular religion, and to nothing more, which is the same limited subject matter jurisdiction as a secular social compact. But the united States have been a jurisdictionally dysfunctional secular social compact practically since the Constitution was ratified by the thirteen independent States. It’s important to understand supreme Court opinions as expressions of such dysfunction. Because stare decisis and precedent are fundamental features of how the judicial system operates, and because these features are inherently chronological, it’s important to understand case law from a historical perspective.
Neither the face-value reading of the organic documents nor the metaconstitution allow the general government to claim subject matter jurisdiction over what people eat, drink, smoke, inject, or take into their bodies by some other means. By default, these things exist within the purview of the "pursuit of Happiness". They’re none of the secular government’s business. However, one of the first things the first Secretary of the Treasury did after taking office was to convince Congress to pass an excise tax on whiskey. Excise taxation doesn’t necessarily involve interstate commerce. The way it was implemented at the time also doesn’t involve the consent of those being taxed. It’s important to understand that one of the reasons given by the Declaration of Independence for the rebellion against the English sovereign was, "For imposing Taxes on us without our Consent". It’s therefore perfectly rational that the farmers who were forced to pay the whiskey excise rebelled. The rebellion subsided before numerous people were killed, largely out of respect for President Washington. Nevertheless, the farmers continued to voice their displeasure until the excise was repealed in 1802. From that time forward, until the latter years of the 19th century, the general government procured revenue primarily through tariffs rather than excises. The ways the States procured revenue during the same period is a completely different subject, and because Gonzales v. Raich pertains to the general government and not to the States, the sources of State revenue are irrelevant here.
The fact that Hamilton chose to tax whiskey, rather than cider, milk, or lemonade, shows how excises have been used generally in this country. Whiskey is known to be an intoxicant, whereas the others are not. So it was much easier for Hamilton and people like him to get support for his taxation scheme from sober Christians, than it would have been if he had tried to tax non-intoxicating beverages. For that reason, it’s obvious that excises on "vices" (tobacco, alcohol, etc.) are largely a function of the de facto Protestant establishment.
It has been much easier for States to put excises on "vices" than it has been for the general government to do the same, mostly because of the difference in subject matter jurisdiction between the States and the general government. Until the demise of the strict constructionist interpretation of the Constitution, States were essentially regarded as having plenary police powers, i.e., as having what we call religious police powers, while the general government was regarded as having only the powers enumerated in the Constitution. Under that interpretation protocol, the 10th Amendment acted as a barrier to the general government’s interference in the internal affairs of the States. Under such circumstances, it was much easier for any given State to put an excise on alcohol, tobacco, or marijuana, than it was for the general government to put the same kind of excise on inhabitants of the given State. It was also much easier for any given State to make consumption, production, and distribution of such things criminal. Even though that’s all obvious and true of the de facto Protestant establishment, things started changing when the general government started moving into the de facto secular humanist establishment.
Because of the 10th Amendment and the differences in respective police powers between the general government and the States, it was necessary for the "temperance movement" to get an amendment to the general Constitution in order to curtail the consumption of alcohol nationwide. Some States banned the manufacture, sale, or transportation of alcohol, such banning being legal according to the States’ de facto subject matter jurisdictions. Because such banning by the States was regarded as being within the States’ legal subject matter, the banning could be done by simply passing a statute. But because prohibition at the national level was understood to be outside the legal purview of the Constitution, simply passing a statute would not work. It would be necessary to change the Constitution before any statute could be legally passed.
Essentially the same differences in subject matter jurisdiction existed between the general government and the States with regard to marijuana, tobacco, opiates, cocaine, and all other intoxicating substances, as existed for alcohol. All these other substances were subject to "federal" and State excises, like alcohol, during the de facto Protestant establishment. But only the vehemence against alcohol was so strong that it prompted a constitutional amendment (18th Am., ratified 1919, repealed 1933 by 21st Amendment) to make manufacture, sale, and transportation of that substance criminal on a national basis.
The generally recognized necessity of a constitutional amendment as a precursor to "federal" alcohol prohibition motivates a question about marijuana prohibition, which is the core issue in Gonzales v. Raich. If it was necessary to have a constitutional amendment as a precursor to statutory prohibition of alcohol, why wasn’t it also necessary to have a constitutional amendment as a precursor to the statutory prohibition of marijuana? The short answer to this question is that between 1919 and 1970, when the "federal" Controlled Substances Act was passed, the judicial branch conspired with the two political branches of the general government to change the Constitution unconstitutionally. The long answer says that these branches made this unconstitutional change by reinterpreting the Commerce Clause, and the long answer must necessarily show how they did that. We’ve already given a brief description of how the general government changed the Constitution unconstitutionally, in regard to the Commerce Clause, in this inventory’s commentary on Article I § 8 clause 3. 39 That clause of Article I § 8 says that "Congress shall have Power . . . To regulate Commerce with foreign Nations, among the several States, and with Indian Tribes". Regulating commerce between States and reaching into the interior of any given State to "regulate" the activities of specific individuals within the State are two radically different things. In 1919, the generally accepted conception of the Commerce Clause would not allow the general government to behave in the way that its agents behaved in Gonzales v. Raich. But the conception at the case’s late date certainly allowed that behavior. From the metaconstitution’s perspective, both the States and the general government are secular social compacts, and that kind of interference in the lives of Raich and Monson is inherently unlawful for both States and the general government. But according to the supreme Court’s unconstitutionally modified Constitution, what those DEA agents did was perfectly legal, and that’s why the Court held that "Congress’ Commerce Clause authority includes the power to prohibit the local cultivation and use of marijuana in compliance with California law." 40
Even though this description of the case may appear to be all there is to it, there’s a perspective that needs attention to show just how nefarious the decades-long conspiracy by these branches of the general government has been, and why the supreme Court is so arrogant and adamant in such inherently unconstitutional decisions. In fact, because the Court’s Commerce Clause jurisprudence so thoroughly expanded the generally accepted purview of the Constitution, Congress was able to make marijuana illegal on a national basis by passing the Comprehensive Drug Abuse Prevention and Control Act of 1970, without ever changing the Constitution with an amendment. Long before 1970, many States had laws regulating marijuana. The first national regulation of marijuana happened by way of the national excise tax imposed through the Marihuana Tax Act of 1937. That general tax statute was preceded in 1936 by the Geneva Convention for the Suppression of the Illicit Traffic in Dangerous Drugs. The 1930s equivalent of the American "Drug Czar", Harry J. Anslinger, was very active in developing this treaty, but the UNITED STATES ultimately opted to not be a signatory because the treaty could not get through Congress. But the Marihuana Tax Act did get through Congress the following year.
There was an extremely steep "federal" excise tax on marijuana from 1937 until 1969. In 1969, the act was overturned in the supreme Court in Leary v. United States, 395 U.S. 6 (1969). In that case, Timothy Leary had been arrested in Texas for marijuana possession. Marijuana possession was illegal in Texas, but Leary was arrested by "federal" agents at the U.S. side of the Mexican border, for violating the Marihuana Tax Act. His case was based on his contention that volunteering to pay the excise tax to the general government would have required self-incrimination under Texas law. The supreme Court found unanimously in his favor, thereby largely nullifying the Marihuana Tax Act. The next year, Congress passed the Comprehensive Drug Abuse Prevention and Control Act of 1970, Title II of which was the Controlled Substances Act. Under the CSA, marijuana is a schedule I substance. Therefore, in 1969-1970, marijuana possession went from being a highly taxed but legal substance in general jurisdictions to being criminal not only within that jurisdiction, but also within every State. There’s more to this story than merely a "federal" statute.
The Comprehensive Drug Abuse Prevention and Control Act demands that the pharmaceutical industry maintain strict control of the substances it uses, manufactures, and sells. This statute inherently establishes a two-tiered system of access to "controlled substances", one tier being the pharmaceutical corporations, physicians, researchers, etc., that have access, and the second tier being everyone else who doesn’t have access, or who more accurately may have legal possession only in accordance with the laws emanating from the five schedules of Title II. Possession of these substances by tier-2 people cannot be deemed criminal and illegal without the warped, de facto interpretation of the Commerce Clause, but it’s also critical to understand that this criminality relates to international treaties. As stated plainly in U.S. Code, Title 21, "Food and Drugs", Chapter 13, "Drug Abuse Prevention and Control", Subchapter I, "Control and Enforcement", Part A, "Introductory Provisions", Section 801, "Congressional findings and declarations: controlled substances",
(7) The United States is party to the Single Convention on Narcotic Drugs, 1961, and other international conventions designed to establish effective control over international and domestic traffic in controlled substances. 41
The fact that this 1970 "federal" statute was designed to "enable the United States to meet all of its obligations" under the international treaties, 42 is an important part of understanding the legal framework that intruded itself into the lives of Raich and Monson. This legal framework essentially denies the unalienable Rights of Raich and Monson, and all tier-2 people in the States, to self-medicate. As Christ said, "it is not what goes into the mouth that defiles the person, but what comes out of the mouth; this defiles a person" (Matthew 15:11; ESV). But through this 1970 act, the general government has conspired with the United Nations to control what people voluntarily put into themselves. This conspiracy may be implemented within States by way of the Commerce Clause, but this collaboration with the UN involves an altogether different part of the Constitution, namely the Supremacy Clause.
The Supremacy Clause, Article VI, paragraph 2, says the following:
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
It’s important to notice that the laws of the united States that are made in pursuance of the Constitution are part of the "supreme law", while treaties appear to be supreme law without being made in pursuance of the Constitution. But supreme Court opinions indicate clearly that "This Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty". 43 Black’s opinion in Reid v. Covert indicates that the reason the framers didn’t indicate in Article VI that treaties should be made in pursuance of the Constitution is because they intended to continue honoring treaties made in pursuance of the Articles of Confederation, like the treaty made at the end of the War for Independence. So it’s necessary to conclude that even according to the supreme Court, treaties must be made in a way that is rationally consistent with the Constitution, just as "federal" statutes must be made under the same constraints. So even though treaties must be made in pursuance of the Constitution, it’s necessary to discern what Constitution is under consideration, the one written by the framers, the one skewed by a labyrinth of supreme Court opinions, or the one whose meaning is discovered through the metaconstitution.
The supreme Court’s reigning interpretation of the Commerce Clause is foundational to the existence of the CSA. So one might be inclined to conclude that the general government’s abuse of Raich, Monson, and all tier-2 people, could be remedied simply by forcing the Court to accept the plain meaning of the Commerce Clause. But that’s not likely because of the forces arrayed in favor of global consolidation. It’s critical to understand that the CSA is modeled after the UN treaties. Because of this, agencies of the general government that are assigned the duties of implementing the law are naturally prone to collaboration with cohorts assigned to do similar tasks for the UN. For example, the official keeper of the controlled substance schedules in this country is the Secretary of Health and Human Services. 44 The Secretary’s counterpart in the international arena is the head of the World Health Organization. Organizations like the Centers for Disease Control (CDC), Food and Drug Administration (FDA), and National Institutes of Health (NIH) are Public Health Service components of the Department of Health and Human Services, and provide the supposedly scientific evidence necessary to maintaining the schedules.
The problem with the collaboration between "federal" controlled-substance agencies and UN controlled-substance agencies is that this collaboration inevitably makes these "federal" agencies vulnerable to being commandeered by the UN’s political agenda. The UN’s political agenda is explicitly stated in its "Agenda 2030" documentation. 45 That this agenda is nowhere near as innocent as the UN pretends it to be can be seen by reading alternative commentaries on the UN’s political agenda. 46 The so-called "covid-19" "pandemic" of 2020 should be ample evidence of the danger of such collaboration.
To summarize our commentary on Gonzales v. Raich, it’s critical to understand that the supreme Court’s warped constitutional hermeneutic not only inhibits ordinary Americans from exercising their natural right to self-medicate, by way of its warped Commerce Clause jurisprudence, but that hermeneutic has also facilitated a Pandora’s box of global control. Under this case, Congress is allowed to ban the use of marijuana even in States that have made a legal allowance for it for medical purposes. But this tyrannical abuse of natural rights only scratches the surface of how hideously evil the laws of the jurisdictionally dysfunctional general government and States have become.
Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal:
About a year after the supreme Court heard arguments in Gonzales v. Raich, it heard arguments in Gonzales, Attorney General, et al., v. O Centro Espirita Beneficente Uniao do Vegetal, et al., 546 U.S. 418 (2006) (referred to herein as Gonzales v. UDV). Raich and UDV are similar in that they both involved the Controlled Substances Act of 1970 (CSA), and thereby involved the Commerce Clause. The Commerce Clause was central to the supreme Court’s opinion in Raich. But in Gonzales v. UDV, the Religious Freedom Restoration Act (RFRA) was central. Nevertheless, even though the RFRA was central to Gonzales v. UDV, the CSA’s dependence upon the Commerce Clause made its place in Gonzales v. UDV implicitly crucial, while the RFRA was explicitly crucial. Before explaining what we mean by these claims, we should show the facts of the case.
Chief Justice Roberts wrote the majority opinion. It says,
A religious sect with origins in the Amazon Rainforest receives communion by drinking a sacramental tea, brewed from plants unique to the region, that contains a hallucinogen regulated under the Controlled Substances Act by the Federal Government. The Government concedes that this practice is a sincere exercise of religion, but nonetheless sought to prohibit the small American branch of the sect from engaging in the practice, on the ground that the Controlled Substances Act bars all use of the hallucinogen. The sect sued to block enforcement against it of the ban on the sacramental tea, and moved for a preliminary injunction.
It relied on the Religious Freedom Restoration Act of 1993, which prohibits the Federal Government from substantially burdening a person’s exercise of religion, unless the Government demonstrates that application of the burden to the person represents the least restrictive means of advancing a compelling interest. 42 U. S. C. §2000bb.1(b). The District Court granted the preliminary injunction, and the Court of Appeals affirmed. We granted the Government’s petition for certiorari. Before this Court, the Government’s central submission is that it has a compelling interest in the uniform application of the Controlled Substances Act, such that no exception to the ban on use of the hallucinogen can be made to accommodate the sect’s sincere religious practice. We conclude that the Government has not carried the burden expressly placed on it by Congress in the Religious Freedom Restoration Act, and affirm the grant of the preliminary injunction. 47
This excerpt from Roberts’ opinion makes it clear that the RFRA was central to the court’s opinion. But seeing how the case would have never existed without the warped constitution and statutes that manifest themselves as the CSA, demands going into a good deal more detail.
Translating from Portuguese, "Uniao do Vegetal literally means ‘the union of the plants.’" 48 The UDV’s sacrament is what they call "Hoasca, which is the union of two plants, the Mariri and the Charona", 49 one of which contains naturally occurring dimethyltryptamine (DMT), a schedule I substance. UDV adherents claim the UDV "is a Christian Spiritist religion". According to the UDV website, "On May 21, 1999, U.S. Customs agents entered the UDV national headquarters in Santa Fe, New Mexico, seizing church records, computers, and all the sacramental hoasca tea stored there." 50
The inspectors seized the intercepted shipment and threatened the UDV with prosecution.
The UDV filed suit against the Attorney General and other federal law enforcement officials, seeking declaratory and injunctive relief. The complaint alleged, inter alia, that applying the Controlled Substances Act to the UDV’s sacramental use of hoasca violates RFRA. Prior to trial, the UDV moved for a preliminary injunction, so that it could continue to practice its faith pending trial on the merits.
At a hearing on the preliminary injunction, the Government conceded that the challenged application of the Controlled Substances Act would substantially burden a sincere exercise of religion by the UDV. See O Centro Espirita Beneficiente Uniao do Vegetal v. Ashcroft, 282 F. Supp. 2d 1236, 1252 (NM 2002). The Government argued, however, that this burden did not violate RFRA, because applying the Controlled Substances Act in this case was the least restrictive means of advancing three compelling governmental interests: protecting the health and safety of UDV members, preventing the diversion of hoasca from the church to recreational users, and complying with the 1971 United Nations Convention on Psychotropic Substances, a treaty signed by the United States and implemented by the Act. Feb. 21, 1971, [1979-1980], 32 U. S. T. 543, T. I. A. S. No. 9725. See 282 F. Supp. 2d, at 1252.1253. 51
These three "compelling governmental interests", (i)"protecting the health and safety of UDV members"; (ii)"preventing the diversion of hoasca . . . to recreational users"; and (iii)"complying with the 1971 United Nations Convention", each arise immediately out of the Controlled Substances Act. This fact that the general government claimed that it had a "compelling governmental interest", quoting RFRA, more specifically, three compelling governmental interests, each arising out of the CSA, generates a demand that we understand the Commerce-Clause roots of the CSA more thoroughly. Fortunately, Justice Stevens provided a clear and crisp history of the supreme Court’s Commerce Clause jurisprudence in Gonzales v. Raich. Before examining that history according to Stevens, we should confirm that the CSA is based on the Commerce Clause.
To the casual observer, it may seem that if the supreme Court repudiated Raich and Monson’s medical use of marijuana, the Court would be prone also to repudiate the UDV’s religious use of a tea containing DMT. But that casual appraisal underestimates the Court’s commitment to following its special protocol for interpreting the Constitution. In both Raich and UDV, the Court relied heavily upon its interpretation of the Commerce Clause, and they came to completely different conclusions as they applied that interpretation to the respective facts. In both cases, the Court focused on the Commerce Clause because the CSA states emphatically in its "Congressional findings and declarations" section that the act depends on the Commerce Clause:
The Congress makes the following findings and declarations:
(1)Many of the drugs included within this subchapter have a useful and legitimate medical purpose and are necessary to maintain the health and general welfare of the American people.
(2)The illegal importation, manufacture, distribution, and possession and improper use of controlled substances have a substantial and detrimental effect on the health and general welfare of the American people.
(3)A major portion of the traffic in controlled substances flows through interstate and foreign commerce. Incidents of the traffic which are not an integral part of the interstate or foreign flow, such as manufacture, local distribution, and possession, nonetheless have a substantial and direct effect upon interstate commerce because–
(A)after manufacture, many controlled substances are transported in interstate commerce,
(B)controlled substances distributed locally usually have been transported in interstate commerce immediately before their distribution, and
(C)controlled substances possessed commonly flow through interstate commerce immediately prior to such possession.
(4)Local distribution and possession of controlled substances contribute to swelling the interstate traffic in such substances.
(5)Controlled substances manufactured and distributed intrastate cannot be differentiated from controlled substances manufactured and distributed interstate. Thus, it is not feasible to distinguish, in terms of controls, between controlled substances manufactured and distributed interstate and controlled substances manufactured and distributed intrastate.
(6)Federal control of the intrastate incidents of the traffic in controlled substances is essential to the effective control of the interstate incidents of such traffic.
(7)The United States is a party to the Single Convention on Narcotic Drugs, 1961, and other international conventions designed to establish effective control over international and domestic traffic in controlled substances. 52
Items 1 and 2 make it obvious that Congress is very concerned about "the health and general welfare of the American people". For anyone, including Congress, to be concerned about someone else’s health and welfare is one thing. For that concerned party to convert that concern into human law is something else entirely. Because of this necessity to distinguish morality from human law, it’s necessary to ask whether Congress had, and still has, de jure authority to make that conversion. — Items 3 through 6 make it obvious that Congress is concerned about traffic in controlled substances across both international borders and interstate borders, and that it’s also concerned about manufacture, distribution, possession and use of controlled substances in both interstate commerce and intrastate with regard to every State’s jurisdiction. — It’s critical to understand how the supreme Court interprets Congress’ concerns and laws in the light of its understanding of the Constitution. It’s also critical to understand whether the constitutional hermeneutics used by Congress and the supreme Court are compatible with the hermeneutical prologue’s metaconstitution. In this case, this is especially true in regard to the Commerce Clause.
In their cause against the Department of Justice and the Drug Enforcement Administration, Raich and Monson did not "dispute that passage of the CSA . . . was well within Congress’ commerce power." 53 Instead, their challenge was
Actually quite limited; they argue that the CSA’s categorical prohibition of the manufacture and possession of marijuana as applied to the intrastate manufacture and possession of marijuana for medical purposes pursuant to California law exceeds Congress’ authority under the Commerce Clause. 54
So they weren’t arguing against the CSA in general, or against the de facto Commerce Clause jurisprudence in general, but only against the prohibition of intrastate manufacture and possession, especially given that California’s Compassionate Use Act legalized such manufacture and possession within the State.
Stevens admitted that the supreme Court’s "understanding of the reach of the Commerce Clause . . . has evolved over time". 55
For the first century of our history, the primary use of the Clause was to preclude the kind of discriminatory state legislation that had once been permissible. 56
As we showed in our commentary on Article I § 8 clause 3, many of the States of the early republic had trade barriers against other States, like duties, imposts, and tariffs. Agreeing with this claim by Stevens, we acknowledge that for "the first century of our history", Congress and the courts used the Commerce Clause to eliminate such trade barriers. Given that our claim is true, that the system established by the founding documents entailed that both the States and the general government were jurisdictionally dysfunctional secular social compacts, the necessary goal of government at all levels needed to be to make these compacts jurisdictionally functional. Because jurisdictionally functional States within the general jurisdictionally functional natural rights polity would not need interstate trade barriers, and would even find them to be part of the dysfunction, it’s reasonable that the courts and Congress would use the Commerce Clause to eliminate such barriers. So in this first century of our history, the general government used the Commerce Clause in a way that was compatible with the natural rights polity, in a way that was moving the system as a whole towards the natural rights polity. 57
Stevens’ opinion in Raich indicates that after the War Between the States, there was a transition from this relatively benign use of the Commerce Clause into the exercise of more formidable commerce powers. He claims that,
In response to rapid industrial development and an increasingly interdependent national economy, Congress "ushered in a new era of federal regulation under the commerce power," beginning with the enactment of the Interstate Commerce Act in 1887, 24 Stat. 379, and the Sherman Antitrust Act in 1890, 26 Stat. 209, as amended, 15 U.S.C. § 2 et seq. 58
As indicated in our commentary on Article I § 8 clause 3, the Interstate Commerce Act of 1887 was the general government’s first step beyond the lawful boundaries of the Commerce Clause. The Commerce Clause calls for the regulation of "Commerce with foreign Nations, and among the several States, and with Indian Tribes". After the War Between the States, the general government started exceeding the bounds of these three spheres, "foreign Nations", "several States", and "Indian Tribes". It did this by moving towards regulation of commerce in general. Exceeding the bounds of these three spheres by moving towards regulation of commerce in general is obviously an extraordinary pilfering of undue power, which when continued over a long period of time amounts to a complete distortion of the framers’ original intent. This trend that started in 1887 is based on a misunderstanding of how the economy works, where that misunderstanding has persisted in popularity up to the present time. It’s reasonable to characterize this misunderstanding as being part of the marxist myth.
There’s very little that Karl Marx claimed about economics that has proven true. But there’s one thing that he did get about half right. In essence, he claimed that capitalism leads inevitably to the centralization of wealth in the hands of a small number of capitalists. A review of the history of the united States since the War Between the States certainly confirms that belief. In fact, Marx made a quasi-accurate claim that this ownership and control of the means of production, by such a cabal of capitalists, is inevitable, and is part of the evolution of society. Other scholars, like those that laid the intellectual foundations for Mussolini’s regime in 20th-century Italy called this tight collaboration between state and cabal of capitalists, "fascism". The Italian fascists glorified this tight collaboration between agents of the state and agents of capitalism, while Marx deplored it. But both history and Marx’s ideology show that what he offered as an alternative to fascism is even worse. Nevertheless, fascism has increasingly characterized the American social superstructure since the War Between the States, thereby seemingly confirming Marx’s claim. To remain faithful to the ideology that’s embedded in the Declaration of Independence and the Bill of Rights, it’s necessary to eschew both fascism and Marx’s alternative system. Nevertheless, it’s necessary to admit that capitalism, as it has existed in the united States since the War Between the States, does tend to generate the accumulation of wealth in the hands of a few, at the expense of the many. With that degree of agreement with Marx established, it’s necessary to proceed to answer the question, Why does this accumulation of wealth in the hands of a few happen, and what can be done to stop that from happening? To answer that question, it’s necessary to abandon Marx’s analysis, because it’s inherently aimed at totalitarian communism. It’s also necessary to admit that the supreme Court’s jurisprudence has adopted this marxian belief in this inherent fallibility of capitalism, and has excused its unlawful expansion of the meaning of the Commerce Clause based on the Court’s belief in that inherent fallibility.
American history shows that it’s certainly true that capitalism has existed within a legal framework that has inadequate appreciation for the natural rights polity. Neither fascism nor Marxism offers a legal framework that has adequate appreciation for the natural rights polity. But it’s reasonable to postulate that capitalism that existed within a legal framework that was adequately modeled after the natural rights polity might not suffer this propensity that Marx described, the propensity for wealth, capital, and the means of production to aggregate into the hands of a few elites. If that postulate were true, then if capitalism existed within a legal framework that had adequate appreciation for the natural rights polity, Marx’s condemnation of capitalism would be wrong. In fact, it’s foolish to think that economics can be separated from law. They can certainly be distinguished. But separating them is a prescription for misunderstanding what’s really going on in the economy. In fact, Marx discarded Judeo-Christian jurisprudence, and really the whole field of jurisprudence, in his economic analysis, and he posited that fiat law by a "dictatorship of the proletariat" would suffice. Marx’s system therefore leads inevitably to totalitarianism. Nominally "Christian" attempts at using marxist analysis while avoiding totalitarian inclinations, like so-called "liberation theology", fail, because they don’t adequately esteem natural rights and the free market. That’s precisely the same failure in the American system, and that’s precisely why American economic history appears to confirm Marx’s dismal appraisal of capitalism.
The claim by Stevens that this "new era of federal regulation under the commerce power" was instigated "in response to rapid industrial development and an increasingly interdependent national economy", defaults into the marxist camp. Stevens’ claim does this by failing to adequately recognize the culpability of the legal system in the developments that generated calls for general regulation of the economy, through statutes like the Interstate Commerce Act and the Sherman Antitrust Act. The legal system had inadequate esteem for the natural rights polity. Instead of remedying that root problem, the general government created quick-and-dirty solutions like these statutes. Such quick-and-dirty solutions tend to hide the fascism behind a supposedly remedial façade, while allowing the fascism to continue and fester. The bottom line is that such jerry-built solutions to the fascism problem merely act as theater to disguise the fascism. The solution to such fascism is to fix the root problem, which is gross deviation from the natural rights polity.
The increasingly fascist economy that has plagued the united States since the end of the War Between the States cannot be fixed by giving the general government more power to meddle in the economy. This increased power to meddle is precisely what the Interstate Commerce Act, the Sherman Antitrust Act, and the Court’s "new era" Commerce Clause jurisprudence enabled. Instead of addressing the core disease in the jurisdictionally dysfunctional legal system, the Congress and the courts conspired to cobble together a remedy that only addressed the symptoms, and thereby pushed the core disease further out of sight. The core of the problems that the Interstate Commerce Act and the other statutes and jurisprudence were supposedly designed to fix were not economic, but legal. The problems existed because neither the general government nor the States were de jure secular social compacts. None of these entities were aimed exclusively at exercising the secular religion. On the contrary, each of these entities had a feudal conception of land ownership, as one example of such dysfunction, where such dysfunction goes well beyond land ownership, and encompasses the entire concept of property. Such dysfunction allowed agents within government to collaborate with operatives within banking and other industries, where such collaboration provided extraordinary powers, like royal monopolies, to a favored few. That skews the market even more than the original fascism, and appears to confirm Marx’s disparaging appraisal of capitalism. Rather than fix the core problem, the general government devised a theater that acted as distraction to the general population while the corruption continued behind the scenes. Although such corporate-state collaboration wasn’t called fascism at the time, that’s precisely what it was. The Interstate Commerce Act of 1887 and the Sherman Antitrust Act of 1890 were the first among a massive cargo of legislation that has all been built on this theater, and on this ignorance, corruption, and deception. It continues up to the present and it is the foundation for the Controlled Substances Act.
With this caveat about the Court’s Commerce Clause jurisprudence taken as given and understood, it’s possible to go on to look at how the Court treated Raich, Monson, and the UDV based on its misapprehension of that clause. In Gonzales v. Raich, Stevens’ opinion makes the following statement:
Cases decided during that "new era," which now spans more than a century, have identified three general categories of regulation in which Congress is authorized to engage under its commerce power. First, Congress can regulate the channels of interstate commerce. . . . Second, Congress has authority to regulate and protect the instrumentalities of interstate commerce, and persons or things in interstate commerce. . . . Third, Congress has the power to regulate activities that substantially affect interstate commerce. . . . Only the third category is implicated in the case at hand. 59
It’s obvious that Stevens’ comments here are only about the commerce "among the several States" phrase of Article I § 8 clause 3, and not the "with foreign Nations" or "with Indian Tribes" phrases. So according to the supreme Court, the commerce "among the several States" includes these "three general categories of regulation", the "channels", the "instrumentalities", and the "activities that substantially affect". The "channels of interstate commerce" refers to shipments. 60 The "instrumentalities of interstate commerce" refers to the means and mechanisms used in making shipments. 61 The "activities that substantially affect interstate commerce" includes practically anything else that might affect interstate commerce. This last category could conceivably include purely intrastate activities that might impact interstate commerce on a purely tangential and almost imperceptible basis. This third category is the categorical domain of the decisions in both Raich and UDV.
To show how intrusive the Court’s "new era" Commerce Clause jurisprudence can be into intrastate activities, Stevens cited Wickard v. Filburn, 317 U.S. 111, 128-129 (1942). In Wickard, an Ohio wheat farmer named Roscoe Filburn filed a complaint against U.S. Secretary of Agriculture Wickard "to enjoin enforcement against himself of the marketing penalty imposed by the amendment . . . to the Agricultural Adjustment Act of 1938". 62 It’s imperative to understand the following about the Agricultural Adjustment Act of 1938 (AAA):
The general scheme of the Agricultural Adjustment Act of 1938 as related to wheat is to control the volume moving in interstate and foreign commerce in order to avoid surpluses and shortages and the consequent abnormally low or high wheat prices and obstructions to commerce. 63
This shows that the purpose of the AAA was to act as central economic planner in regard to agriculture, and more specifically as far as the Wickard case is concerned, in regard to wheat. This is obvious violation of the limitations of the Commerce Clause indicated above. Marxist regimes have provided overwhelming empirical evidence beyond any rational person’s reasonable doubt that central planning doesn’t work. Free market economists like Ludwig von Mises and Murray Rothbard have proven rationally why central planning cannot ever work in a secular milieu. But the courts and the political branches conspired, starting in the "new era", and going on a rabid conspiracy binge between the two world wars, to put the marxist delusion into practice. The opinion in Wickard, written by an otherwise reputable supreme Court justice, panders to the same delusion.
The main point in Wickard v. Filburn that pertains to both Raich and UDV revolves around the fact that even though Roscoe Filburn was growing a quantity of wheat beyond the AAA’s allotment, he wasn’t selling that excess wheat in interstate commerce. In fact, he wasn’t selling it at all. He was using that excess wheat on this own farm, for bread for his family and feed for his livestock. But the Court saw that relatively minor amount of wheat as something that would "substantially affect interstate commerce". The Court rationalized this by seeing that Filburn’s self-grown wheat would reduce his need to buy animal feed on the open market, and because such animal feed was an interstate commodity, he would have an admittedly small impact on interstate commerce, and if many farmers did the same thing, their collective excess wheat production would "substantially affect interstate commerce".
This line of reasoning was used by the supreme Court in both Gonzales v. Raich and Gonzales v. UDV. In Raich, all parties acknowledged that there was a large interstate market in marijuana, even though marijuana was illegal under the CSA. The same way Congress esteemed itself as having a stake in the control of the interstate wheat market, it esteemed itself as having a stake in the interstate marijuana market. Its stake in the latter market may have been to drive marijuana trade that existed outside the approval of the CSA to zero, but that was really not relevant to the Court’s opinion.
[O]ne concern prompting inclusion of wheat grown for home consumption in the 1938 Act was that rising market prices could draw such wheat into the interstate market, resulting in lower market prices. Wickard, 317 U. S., at 128. The parallel concern making it appropriate to include marijuana grown for home consumption in the CSA is the likelihood that the high demand in the interstate market will draw such marijuana into that market. While the diversion of homegrown wheat tended to frustrate the federal interest in stabilizing prices by regulating the volume of commercial transactions in the interstate market, the diversion of homegrown marijuana tends to frustrate the federal interest in eliminating commercial transactions in the interstate market in their entirety. 64
So the supreme Court denied Raich and Monson’s natural right to grow their own and consume what they want, on the same marxist grounds upon which they denied Roscoe Filburn’s natural right to grow his own wheat and do what he wanted with it.
Now, given that the UDV, like Raich, was using a controlled substance, one naturally wonders how UDV received the Court’s imprimatur while Raich and Monson got treated worse than Roscoe Filburn. To follow the Court’s line of reasoning from its warped Commerce Clause jurisprudence, as that line of reasoning was applied to the respective facts in Raich and UDV, it should help to reconsider Congress’ "findings and declarations" in its promulgation of the CSA. As indicated above, items 3 through 6 of those findings and declarations are inherently entangled in the Court’s Commerce Clause jurisprudence. But items 1 and 2 are more fundamental than commerce. In items 1 and 2, Congress was essentially stating that it was converting its supposedly humanitarian concern about the "American people" into human law. This is a clear violation of the general government’s lawful subject matter jurisdiction as a secular social compact. In Gonzales v. UDV, the enforcement arm of the general government was applying those ultra vires laws to the UDV’s use of hoasca, claiming that it had the "compelling governmental interest" required by the RFRA to burden those members of the UDV. The general government was thereby claiming that it was "protecting the health and safety of UDV members", as a subset of the "American people". 65 In contrast to this claim against the UDV, the general government did not have to filter its "compelling interest" through the RFRA in the Raich case. It merely claimed that it had a "compelling interest" in "protecting the health and safety" of Raich, Monson, and all other tier-2 people against the hazards of that schedule I substance. But in both cases, the government’s case was based more on the Commerce Clause than on any pretense that government agents cared about the "health and safety" of any tier-2 people besides themselves.
Items 3 through 6 of Congress’ "findings and declarations" of the CSA make it obvious that by promulgating the CSA, the general government was converting its exorbitant conception of the Commerce Clause into human laws that pertain to traffic of "controlled substances" across international borders, across interstate borders, and within each State’s intrastate jurisdiction. There are three points that should be obvious by now: (i)The current understanding of the Commerce Clause is unlawful in regard to interstate and intrastate traffic. (ii)The metaconstitution demands that the general government, as a secular social compact, cannot have subject matter jurisdiction beyond the limits of prosecuting delicts and litigating secular contract disputes within its original and appellate jurisdictions. That limitation eliminates its presumed jurisdiction over intrastate and interstate traffic in "controlled substances" in all cases in which delicts and contract violations are not immediately obvious. The fact that so-called "controlled substances" might be involved in such delicts and contract violations is a secondary or tertiary issue. The primary issue is whether such delicts or contract violations exist, and whether the general government has jurisdiction over them. (iii)There is a dramatic difference between traffic of substances across foreign borders and traffic of substances within the interior of the UNITED STATES. Domestically, the united States and the citizens therein have presumably consented to being participants in the natural rights polity that exists, by interpretation, within the organic documents. The default presumption regarding people outside such domestic jurisdiction is that they have NOT consented to such participation. The presumption regarding international borders must therefore be that any substances crossing those borders into the interior of the united States must be controlled, as threats, and as therefore presumptively delictual.
These three points that arise out of the hermeneutical prologue’s metaconstitution pertain to the three "compelling interests" that the general government claimed in burdening UDV. They also relate to the general government’s extra-RFRA burden on Raich and Monson. The application of these three points to Raich’s, Monson’s, and UDV’s "health and safety" is simple and has already been addressed above. The application of these three metaconstitutional points to the government’s claimed need to prevent the "diversion" of "controlled substances" "to recreational users" must still be addressed in regard to both cases. The application of these three metaconstitutional points to foreign commerce, commerce across international borders, and the supposed need for treaty conformity in item 7 of the CSA’s "findings and declarations", also still needs to be addressed. — Now that it’s clear what the general government’s "new era" Commerce Clause jurisprudence amounts to, it should be easy to make those applications.
The agents of the general government in both Raich and UDV essentially claimed that they had a compelling governmental interest in "preventing the diversion of hoasca [and marijuana] to recreational users". Given that the current understanding of the Commerce Clause is unlawful in regard to interstate and intrastate traffic and use, this claim by governmental agents is inherently bogus from the metaconstitutional perspective. In Raich, the Court reasoned that because there was a huge interstate market in marijuana, Raich and Monson’s purely local production and consumption would inevitably impact the interstate market, the same way Filburn’s purely local and non-commercial wheat production would supposedly impact the interstate wheat market. In contrast to this, in UDV, the Court reasoned that because there was practically no interstate market in hoasca, the agents of the general government had practically no compelling interest in burdening the UDV. 66 In neither Raich nor UDV were there delicts or contract violations, and in neither case did the general government have subject matter jurisdiction, including Commerce Clause jurisdiction. But this relative difference in prospective impact in interstate markets, between Raich and UDV, is primarily why the Court negated Raich and Monson while upholding UDV.
Although the CSA was at least implicitly crucial in both Raich and UDV, and although the CSA was clearly designed to implement the United Nations treaties within the domestic united States, there was practically no mention of the treaty in Raich. But the government’s third compelling interest in prosecuting (and persecuting) UDV was for the sake of "complying with the 1971 United Nations Convention on Psychotropic Substances". The District Court negated the "federal" agents on this claim by claiming that the treaty did not cover hoasca. But the supreme Court negated the District Court on this point by claiming that the treaty did, indeed, cover hoasca. Even so, the supreme Court found that compliance with the UN treaty was insufficient grounds for finding a compelling interest there.
In conclusion to our commentary on this case, it should suffice to make the following observations: (i)The supreme Court found that the government had no compelling interest in protecting the health and safety of UDV members regarding their use of hoasca because hoasca posed no apparent threat to their health and safety. (ii)The supreme Court found that the government had no compelling interest in preventing the diversion of hoasca to recreational users because there was no apparent likelihood of such diversion. (iii)The supreme Court found that the government had no compelling interest in forcing compliance with the 1971 United Nations Convention on Psychotropic Substances because such compulsion would have been an unnecessary affront to the RFRA. (iv)Because the government agents could not prove that they had a compelling interest in burdening the UDV, there was no need to move to the RFRA’s how-to-factor, applying the burden with the least restrictive means possible.
To wrap up our commentary on Raich and UDV as seemingly related cases, we should add these comments: (i)The Comprehensive Drug Abuse Prevention and Control Act of 1970 was obviously designed to implement UN treaties domestically within the united States. Title II of that act, the CSA, clearly divided the American population into two tiers, one of the controllers and the other of the controlled. The overwhelming evidence since 1970 is that this is part of a long-term divide-and-conquer strategy against the American people, similar to the divide-and-conquer strategy that the British Empire used against the Chinese in the so-called "Opium Wars". Instead of merely suffering this from the now defunct British Empire, Americans are suffering this strategy at the hands of globalists, a class of people that includes most billionaires, the United Nations, the Council on Foreign Relations, central bankers, the World Economic Forum, the World Health Organization, a hoard of UN and U.S. bureaucrats, etc., etc., etc. (ii)There is an extremely important difference between science and scientism. Pure science is inherently devoid of politics. Scientism is the intentional blending of science with politics for the sake of achieving a political end. The agencies in charge of determining what substances appear on the schedules of the CSA, and the CSA’s international counterpart, are far more practitioners of scientism than of science. Both the World Health Organization and the U.S. Department of Health and Human Services have political agendas that cannot be trusted. So their "scientific" findings should not be trusted unless people committed to the natural rights polity subject them to powerful microscopic scrutiny. (iii)Much has been made in the Christian community of the existence and use of psychotropic substances, and the belief that such use is inherently related to sorcery. This is certainly no place to go into an exhaustive exegesis of this subject. Nevertheless, we should at least address it superficially. This idea relates largely to the fact that variations of the Greek word, pharmakeia, the root word for the English "pharmaceutical", appear in the Greek New Testament in three places, Galatians 5:20, Revelation 9:21. and Revelation 18:23. In each appearance, the meaning has a mixture of meanings: magic, sorcery, medicine, and drugs. These facts have been used in the Christian community for as long as the CSA has existed to propagandize in favor of the 2-tiered system established by the CSA. But the fact is that drugs and medicines like marijuana and hoasca are merely tools, and like all tools, people can either use them or abuse them. Those three references to pharmakeia in the New Testament certainly refer to instances of misuse. But that fact should not be used to impugn every human being’s attempt to use psychotropic substances well. In fact, it makes far more sense to interpret these three occurrences of that word as referring to the Tower-of-Babel scientism that attempts to control everything, including what people buy, sell, eat, or take as medicine. This latter is guaranteed to be pharmakeia sorcery. (iv)The fact that so-called "controlled substances" can be abused is no good reason to ignore a corollary fact. The corollary fact is that whatever jurisdictionally dysfunctional government agency takes control of such substances is even more capable of doing long-term damage to society than the general population. This is true regardless of whether the agency is the UN in general, the World Health Organization in particular, the general government of the united States, subsidiary agencies of the Department of Health and Human Services, the DEA, or some other public or private entity. What people consume should be left forever a choice of the people who own their bodies, meaning every natural person with capacity.
Medellin v. Texas:
So far in this terse overview of subsequent cases, we’ve seen that the supreme Court made a bad decision through bad reasoning in Boerne, made a bad decision through bad reasoning in Raich, and made a good decision through bad reasoning in UDV. Commentary on the next case, Medellin v. Texas, 552 U.S. 491 (2008), will show that the supreme Court made another good decision through good but inadequate reasoning. Unlike Boerne, Raich, and UDV, which are primarily about domestic human law, Medellin is primarily focused on the intersection between domestic human law and international human law. We’ve chosen Medellin as one of the five subsequent cases to review because it’s critical in these times to understand the precarious relationship between the nation’s domestic and international laws.
The underlying facts of the case are these: In 1993, Jose Ernesto Medellin was arrested in Texas for the rape and murder of two young girls. Medellin was born in Nuevo Laredo and was a Mexican national, although he spent most of his life on the U.S. side of the border. When he was arrested, he told the arresting officers in Houston that he was a Mexican national. At that time, the arresting officers did not notify Mexican officials of his arrest. While in custody, he confessed to the rape-murders. In 1994, Medellin was tried in a Texas court and sentenced to the death penalty. In 1997, Medellin made a habeas corpus appeal to the Texas Court of Criminal Appeals. The appeals court affirmed the lower court’s death sentence.
Now that this much of the case’s background is revealed, it’s necessary to put the case into the context of international law. Both the UNITED STATES and Mexico are party to the Vienna Convention on Consular Relations (VCCR), which was promulgated in 1963. Article 36 of this treaty says the following:
Communication and contact with nationals of the sending State
1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State :
(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State ;
(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;
(c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.
2. The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended. 67
This is generally interpreted to mean that a nation party to the VCCR should notify the consulate of the other nation party to the VCCR from which an arrested foreign national comes, so that the consulate and the foreign national can be in communication while the foreign national is detained. In Medellin’s case, the Houston police neglected to notify the Mexican consulate of Medellin’s incarceration, even though Medellin told the police that he was a Mexican national. But in Medellin’s habeas corpus appeal in 1997, he did not mention the State’s presumed obligation under Article 36 of the VCCR. — When the VCCR was promulgated in 1963, the convention also adopted the "Optional Protocol concerning the Compulsory Settlement of Disputes", and both the UNITED STATES and Mexico became party to that optional protocol. The part of the optional protocol that’s pertinent to Medellin’s case says the following:
The States Parties to the present Protocol and to the Vienna Convention on Consular Relations, hereinafter referred to as "the Convention", adopted by the United Nations Conference held at Vienna from 4 March to 22 April 1963,
Expressing their wish to resort in all matters concerning them in respect of any dispute arising out of the interpretation or application of the Convention to the compulsory jurisdiction of the International Court of Justice, unless some other form of settlement has been agreed upon by the parties within a reasonable period.
Have agreed as follows:
Disputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the Court by an application made by any party to the dispute being a Party to the present Protocol. 68
The VCCR and the Optional Protocol hereby indicate that the International Court of Justice (ICJ) has compulsory jurisdiction over disputes arising out of the VCCR.
It’s important to understand that at no time during his initial trial and appeal did Medellin raise the Article 36 issue. But in 1998, he filed a second habeas corpus petition, and this time he did raise the Article 36 issue. The Texas trial court to which he submitted the petition denied relief on the grounds that the second writ of habeas corpus petition failed to meet the tests necessary to allow a second application. 69 Put bluntly, Medellin had not raised the Article 36 issue before, and even if he had, it would not have changed the results of his conviction and sentencing. 70 In 2001, the Texas Court of Criminal Appeals affirmed the trial court’s 1998 rejection of Medellin’s second application for a writ of habeas corpus.
In 2003, the Mexican government initiated proceedings against the UNITED STATES in the International Court of Justice through the Optional Protocol concerning Compulsory Settlement of Disputes, based on Mexico’s claim that the UNITED STATES was in violation of Article 36 of the VCCR. Mexico’s application to the ICJ named Medellin and fifty-plus other Mexican nationals, who were also on death row in the U.S., as Mexican citizens who had been mistreated under Article 36, because those individuals had allegedly been deprived of their consular access rights. This litigation by Mexico against the UNITED STATES is generally known as "Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America)", or the "Avena case". To keep the Avena case oriented within the context of the Medellin case, it’s important to recognize that there were two other cases against the UNITED STATES in the ICJ prior to Avena, both of which involved foreign inmates on death row in the U.S., who were complaining to the ICJ that they had not been allowed VCCR-Article 36 communications prior to sentencing. The cases are Breard v. Greene, 523 U.S. 371 (1998), 71 and "LaGrand". 72 Breard involved a citizen of Paraguay who was convicted of rape-murder in Virginia in 1992. The cases are similar enough so that focusing on one should suffice to show the underlying principles and mechanisms involved in the other. We’ll focus here on LaGrand instead of Breard.
In 1999, Germany initiated an action against the UNITED STATES in the ICJ. They did this on behalf of Walter LaGrand, who was on death row in Arizona. Walter LaGrand and his brother Karl-Heinz had been born in Germany, but had moved to the United States when they were four and five. They never became citizens of the united States. They robbed a bank in Arizona in 1982, and murdered a man in the process. Both were convicted and sentenced to death. Karl was executed in February of 1999. Walter was scheduled to be executed in early March. Within hours of Walter’s execution, the German government filed an action in the ICJ seeking a grant of provisional order requiring the UNITED STATES to delay Walter’s execution. The ICJ granted the order. Then Germany filed an action in the supreme Court to get the latter court to enforce the ICJ’s order. The supreme Court declined for three reasons:
[(i)]First, it appears that the United States has not waived its sovereign immunity. [(ii)]Second, it is doubtful that Art. III, § 2, cl. 2, provides an anchor for an action to prevent execution of a German citizen who is not an ambassador or Consul. [(iii)]With respect to the action against the State of Arizona, . . . a foreign government’s ability here to assert a claim against a State is without evident support in the Vienna Convention and in probable contravention of Eleventh Amendment principles. . . . Given the tardiness of the pleas and jurisdictional barriers they implicate, we decline to exercise our Original jurisdiction. 73
After this supreme Court decision and the conveyance of the ICJ’s provisional order to the governor of Arizona, Arizona opted to execute Walter as scheduled.
After Walter was dead, Germany complained further to the ICJ that the UNITED STATES had not implemented the provisional order, and had thereby violated international law. The UNITED STATES responded to Germany’s complaint by arguing to the ICJ, (i)that the VCCR did not pertain to individual rights, but only to state parties; (ii)that the VCCR was originally intended to be exercised subject to the laws of each state party; 74 and (iii)that Germany was attempting to convert the ICJ into an international court of criminal appeals. — In June of 2001, the ICJ ruled in Germany’s favor in this case, by rejecting each of these claims made by the UNITED STATES. In the process, the ICJ made the following claims: (i)It claimed that the VCCR granted rights to individuals, and not merely to state parties, and it claimed that domestic laws could not limit the rights thus granted, but only specify the means by which those rights were to be exercised. (ii)It claimed that its provisional orders and measures were legally binding. This is the first time that the ICJ had ever made such a claim. (iii)It claimed that the UNITED STATES had violated the VCCR through its adherence to the doctrine of procedural default. It claimed that that doctrine should not be applied to cases involving the VCCR.
It’s imperative to understand these controversies within the context of what the ICJ (a.k.a. "World Court") is, and what the relationship of the people and institutions of the united States is, to this supposed international court. The ICJ is one of the six principal organs established by the UN Charter. 75 There’s no doubt that when the UNITED STATES became a member of the UN in 1945, it did so with plausibly good intentions, namely, to maintain world peace after two world wars. Even though that’s true, it’s necessary now, and should have been necessary then, to interpret all treaties, charters, and documents associated with the UN by way of the hermeneutical prologue’s metaconstitution. This obviously entails disentangling this country from whatever inimical doctrines may be embedded in those treaties, documents, and charters. From this perspective, this means that the UNITED STATES should remove itself immediately from every single tie that binds the united States to any suicidal game plan. Because UN Agendas 21 and 2030 are essentially calling for discarding every principle upon which the united States is based, it’s obvious that continuing normal participation in the UN is just such a suicidal game plan. There’s nothing inherently wrong with an international forum in which all parties are seeking peace. There’s also obviously a need for the united States to continue to have consular relations with other countries. But UN Agenda 2030 is vivid proof that the United Nations on the whole has gone completely rogue, and is essentially a suicide pact. The actions of the ICJ in Medellin and other cases are evidence that the ICJ is an accomplice in the UN’s rogue agendas. — With these caveats established, it’s reasonable to continue commentary on the LaGrand case.
Both the three contentions of the UNITED STATES and the three counter-contentions of the ICJ in the LaGrand case need to be viewed strictly through the metaconstitution. From this perspective, the only lawful purpose and function of both the united States and the United Nations is to exercise the secular religion. The united States at least has founding documents and history that can be interpreted as paying some homage, however much imperfect, to the secular religion. The UN has no such history or documentation. In fact, it’s a long way from prudent for the united States to be participating in a nominal court that has no commitment to the secular religion. With these things said, it makes sense that the three contentions of the UNITED STATES in the LaGrand ICJ case would be closer to compatible with the secular religion than the three counter-contentions of the ICJ. That fact should be obvious enough without our going into a detailed compare-and-contrast routine with regard to the three respective points. — With these things said, it’s reasonable for us to continue commentary on Medellin.
As already indicated, the Mexican government initiated proceedings at the ICJ against the UNITED STATES in 2003, on behalf of fifty-plus Mexican nationals who were on death row in the united States, one of whom was Jose Ernesto Medellin. Mexico complained to the ICJ that these individuals had been denied their VCCR-Article 36 rights while being tried in State courts. This is the third in a string of related ICJ cases, Breard / LaGrand / Avena, Avena being the name of one of the fifty-plus Mexican nationals. In the Avena case, the ICJ agreed with Mexico and ordered the U.S. courts to reconsider the 50+ convictions and sentences in the light of Article 36. The ICJ did this in spite of the fact that the State courts were procedurally barred by the procedural default doctrine from such reconsideration. This decision by the ICJ was issued on March 31, 2004.
In 2003, Medellin filed a habeas corpus petition in Federal District Court, similar to the petition he had filed at the State court in 1998 which raised the Article 36 issue. The Federal District Court denied the petition on the grounds that Article 36 would not have changed the results of the original trial. Medellin then appealed this decision to the 5th Circuit Court of Appeals. In 2004, the 5th Circuit affirmed the decision of the District Court, saying that the VCCR did not confer any private rights to individuals, but only to state parties. So the VCCR didn’t give Medellin the power to enforce those rights as part of his defense. Later in 2004, Medellin appealed the case to the supreme Court, and the supreme Court decided to hear his case, granting certiorari on December 10, 2004. But well before the supreme Court heard arguments (on March 28, 2005), there were actions by President Bush that would impact the supreme Court’s decision.
On February 28, 2005, President Bush issued a "Memorandum for the Attorney General", the subject being "Compliance with the Decision of the International Court of Justice in Avena". 76 In the memo, Bush said, "I have determined . . . that the United States will discharge its inter-national obligations under the [ICJ’s Avena] decision . . . by having State courts give effect to the decision in accordance with general principles of comity in cases filed by the 51 Mexican nationals addressed in that decision." Essentially, Bush was thereby telling the Attorney General that he wanted the State courts to reconsider their death-penalty decisions in light of VCCR Article 36 and the ICJ’s Avena decision. Of course, this may be what the president wanted, but the separation of powers doctrine, among other things, precluded him from being able to force such reconsideration. — Bush then had his Secretary of State, Condoleezza Rice, send a letter dated March 7, 2005, to the Secretary-General of the United Nations, saying the following:
This letter constitutes notification by the United States of America that it hereby withdraws from the aforesaid Protocol [Concerning the Compulsory Settlement of Disputes]. As a consequence of this withdrawal, the United States will no longer recognize the jurisdiction of the International Court of Justice reflected in that Protocol. 77
As far as the UNITED STATES is concerned, this letter terminates all pretense by the U.S. that it is under the jurisdiction of the ICJ with respect to the VCCR.
The supreme Court heard arguments in Medellin v. Dretke on March 28, 2005. But prior to that, after Bush’s memorandum, Medellin "filed an application for a writ of habeas corpus in the Texas Court of Criminal Appeals, relying in part upon [the] memorandum from President George W. Bush that was issued after we granted certiorari." 78 Stating that the Texas Court might be a better forum for answering Medellin’s claims, among other related reasons, the supreme Court stated, "we dismiss the writ [of certiorari] as improvidently granted".
While the Texas Court of Criminal Appeals was considering Medellin’s latest appeal to them, the supreme Court decided a similar case in Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006). The case involved two men, one a Mexican and the other a Honduran, who were each sentenced to long prison sentences for violent, felonious crimes. Each wanted to suppress evidentiary admissions that they had made on the grounds that arresting authorities had failed to comply with Article 36 of the VCCR. On June 28, 2006, the supreme Court issued its opinion that, (i)States did not need to suppress evidence based on the VCCR; (ii)States could follow their normal procedural default rules and ignore Article 36 claims that had not been brought timely; and (iii)the domestic laws of each nation govern the implementation of the VCCR.
On November 15, 2006, the Texas Court of Criminal Appeals issued its opinion regarding Medellin’s latest appeal. In his appeal, Medellin had claimed that the court should reconsider his Article 36 claim based on two new considerations: (i)He claimed that the ICJ’s Avena decision and the President’s memorandum "constitute binding federal law that preempt Section 5, Article 11.07 [of Texas criminal statutes]". (ii)He claimed that Avena and the memo "were previously unavailable factual and legal bases under Section 5(a)(1) [of Texas criminal statutes]". The Texas court concluded:
Having found that the ICJ Avena decision and the Presidential memorandum do not constitute binding federal law that preempt Section 5 under the Supremacy Clause of the United States Constitution and that neither qualify as previously unavailable factual or legal basis under Section 5(a)(1), we dismiss Medellin’s subsequent application for a writ of habeas corpus under Article 11.071, Section 5. 79
With this repudiation of his claims in hand, Medellin proceeded to appeal again to the supreme Court. On April 7, 2007, the supreme Court granted him certiorari. Medellin II was argued on October 10, 2007, and decided March 25, 2008.
In its majority decision, the supreme Court held that the ICJ’s Avena decision did not constitute enforceable domestic law. It held this by way of several important considerations: (i)According to Roberts’ opinion, a treaty can become binding domestic law only, a)by way of Congress passing statutes that implement the treaty domestically, and b)when the treaty passed by the Senate contends in the body of its text that it is "self-executing". (ii)"Because none of these treaty sources [(Optional Protocol, United Nations Charter, and ICJ Statute)] creates binding federal law in the absence of implementing legislation, and because it is uncontested that no such legislation exists, we [(Roberts and company)] conclude that the Avena judgment is not automatically binding domestic law." 80 It’s critical to see that the United Nations Charter, the ICJ statute that exists under the UN Charter, and the VCCR’s Optional Protocol DO NOT constitute binding domestic law. They cannot be lawfully enforced within the united States.
In his case, Medellin claimed that because he was one of the 51 Mexican nationals named in the Avena decision, he was personally party to that case. But Roberts contended that being an individual person named in a case before the ICJ "has never been understood to alter the express and established rules that only nation-states may be parties before the ICJ". 81 The ICJ statute contained in the UN Charter forbids individuals from being parties in adjudication before the ICJ, because it’s a pact between nations, and only nations can be represented there.
Citing its decision in Sanchez-Llamas v. Oregon, the supreme Court reasserted its claim that domestic procedural rules govern a treaty’s implementation, unless there are explicit statements to the contrary in implementing statutes or within a self-executing treaty.
Medellin’s reliance upon the President’s Memorandum of February 28, 2005, as binding on State courts, was rejected by the Court. Roberts’ opinion stated: "The President has an array of political and diplomatic means available to enforce international obligations, but unilaterally converting a non-self-executing treaty into a self-executing one is not among them." 82 — Medellin also claimed that the President’s Memorandum was valid because of the president’s constitutional power to "take Care that the Laws be faithfully executed", Article II § 3 of the Constitution. Roberts argued that this clause "allows the President to execute the laws, not make them. . . . [T]he Avena judgment is not domestic law; accordingly, the President cannot rely on his Take Care powers here." 83
With Medellin’s case essentially smashed, Roberts’ opinion ended by saying, "The judgment of the Texas Court of Criminal Appeals is affirmed." Medellin was executed in August of 2008.
We’ve gone into this case in some detail for the sake of showing the precarious nature of the united States as it faces outward at the Tower-of-Babel redux forces operating at large in the international arena. To a large extent, the internal judiciary has done an adequate job of defending the nation against globalization with respect to this particular case. They’ve done this by relying on their peculiar interpretational protocol for applying the Constitution. But that protocol is fragile. Its fragility can be seen whenever political pressures become so great that the justices of the supreme Court buckle under the pressure, and allow those pressures to take dominion. That’s precisely what happened during the Great Depression, when Franklin Roosevelt threatened the Court with his court-packing scheme. Similar pressures exist in more recent decades, especially as UN Agenda 2030 becomes openly exercised through a fake epidemiological crisis, including school closures, ruination of small businesses, mandated wearing of masks, fake statistics regarding coronavirus cases and death tolls, etc., etc., etc. If the pressures get to be more than the judicial system can bear, it may mean the end of the experiment that the founders of this nation started.
When we started examining this case, we characterized it as a good decision based on inadequate reasoning. By relying strictly upon their stare decisis-based protocol for interpreting the Constitution, the supreme Court was able to come to decisions, regarding all the issues involved, that are largely compatible with the metaconstitution. But the fact that the supreme Court doesn’t recognize that its sole purpose is to adjudicate according to the secular religion means that its interpretational protocol is increasingly fragile, and increasingly alienated from the raw Constitution, and that this fragility, alienation, and ambivalence about what the law is, makes the united States increasingly vulnerable to enemies, and increasingly infested with traitors and fifth-column saboteurs.
Obergefell v. Hodges:
The fifth and final case we’re examining under the auspices of the 1st Amendment religion clauses is what’s sometimes called the "gay marriage" case, Obergefell v. Hodges, 576 U.S. 644 (2015). This case is an example of how political pressure suffered, and sometimes entertained, by the supreme Court, combined with the jurisdictional dysfunction inherent in the original, legacy system, can result in absolutely rotten decisions. To understand the case from the metaconstitution’s perspective, it’s important to understand both the political pressure and the jurisdictional dysfunction that arise rationally out of the legacy system. We’ll start with the jurisdictional dysfunction.
Part of this country’s heritage of Christian morality has been the assumption that marriage is defined as a monogamous commitment between one man and one woman. This assumption exists in the English common law that was inherited by the founding generation and that was generally adopted by the States in the de facto Protestant establishment. During the de facto Protestant establishment, this definition of marriage was rarely challenged, with exceptions like the Reynolds Mormon polygamy case. Those challenges were generally repudiated under the established Protestant political regime.
To understand what marriage is from the hermeneutical prologue’s metaconstitutional perspective, it’s necessary to understand that marriage is fundamentally a contract with indefinite duration. Within the community of people who identify as Bible-believing Christians, the terms of the Christian covenant are generally understood to specify more specifically that marriage is a contract between one man and one woman, that has an indefinite duration. But this generality needs to be understood within the context of the biblical covenants. From the biblical perspective, the Christian covenant, what we call the Messianic Covenant, is not a global covenant. This means that this covenant does not inherently apply to all people. Bible-believing Christians therefore have no prerogative to impose their definition of marriage on people who are outside their community. What Christians, and all people, have a prerogative to impose on all other people, is the secular religion and nothing more. The secular religion derives from the global covenant as it existed at the promulgation of the Noachian Covenant, which is the last of the Bible’s global Covenants. Unlike the Mosaic and Messianic covenants, the in personam jurisdiction of the global covenant includes all people. So whatever human laws (as distinguished from moral laws, laws of the moral-law leg of the natural law) are explicitly prescribed under the global covenant may be, even must be, applied by humans upon humans. The only human law mandated at the promulgation of the Noachian Covenant is enforcement against bloodshed, where such damage can exist in two and only two forms, damage ex delicto and damage ex contractu. Marriage being a contract, marriage contracts are enforceable in the secular arena only when the damage arises ex contractu. However, there are caveats that necessarily accompany damage that arises ex contractu within a secular jurisdiction. One is that the damage must be cognizable as damage within a secular court. Another is that secular ecclesiastical courts are limited to the title-transfer model of contract interpretation, while religious ecclesiastical courts can use the more general property-interest model of contracts. 84 This means that generally, "naked promises", like those that are necessary to the formation of a marriage contract, are not admissible as substantial evidence in a secular ecclesiastical court. Naked promises may be admissible in religious ecclesiastical courts, but they are not admissible in secular ecclesiastical courts.
One fundamental misconstruction of reality in the jurisdictionally dysfunctional governments and courts of the united States, during this de facto secular humanist establishment, has been the failure to recognize that the general government, the States, the counties, and the municipalities are secular social compacts and not religious social compacts. This fact was not clearly recognized during the founding era. It’s not recognized up the present day. It was certainly not recognized when Obergefell was decided in 2015. Traditional Reformed Theology has contributed to the governments’ failure to distinguish secular social compacts from religious social compacts by failing to adequately distinguish two things within the Bible: (i)the jurisdictions of the biblical covenants and (ii)the profound distinction between moral law and human law. Traditional Reformed Theology interpreted what it often called the "Creation Covenant", meaning the early chapters of Genesis, as positing marriage as the fundamental building block of human societies. From that, traditional Reformed Theology has gone on to say that because the Creation Covenant applies to all humans, secular government officials generally have the prerogative to perform marriage rites. However, the extension of Reformed Theology that arises out of the hermeneutical prologue says that even though marriage may indeed be the fundamental building block of society, globally prescribed human law does not appear anywhere in those early chapters of Genesis, and exists only at Genesis 9:6. This means that marriage should not be comprehended as globally prescribed human law. It should be understood within secular jurisdictions to be a kind of contract that must be understood to have the same fundamental characteristics as all secular contracts. — With this fundamental perspective established, it should be possible to approach this case without being swayed by the political hysteria.
Because States, counties, and municipalities are inherently secular social compacts, they’re operating out of bounds when they perform weddings, issue marriage licenses, record marriages, issue marriage certificates, etc. So these jurisdictionally dysfunctional secular social compacts have been operating out of bounds since their inception. All the facts and claims in Obergefell v. Hodges need to be understood within this context of pervading jurisdictional dysfunctionality. Although this was the need in Obergefell, the supreme Court came nowhere close to that perspective, either in the majority opinion or in the dissenting opinions.
As is often the case when the general government applies its edicts and standards within State jurisdictions, it does so by way of the 14th Amendment and the incorporation doctrine. Given that States have been performing marriages since their inception, and that they have been issuing marriage licenses since the days when interracial marriages were made illegal, the States have been operating in this marital arena for a long time, always with the assumption that the parties being married were of the opposite sex. The 14th Amendment contains the Equal Protection Clause and the Due Process Clause, both of which stipulate, at least implicitly, that all domestic people should be equal under the law and receive the same due process. It’s a short step from these clauses to the conclusion that if people of the same sex want to be married, then the State is obligated to offer the same benefits and obligations to such homosexuals as it offers to heterosexuals. From that perspective, the supreme Court’s majority opinion in Obergefell is perfectly rational. So it makes perfect sense that the supreme Court would hold that the 14th Amendment mandates that States must offer marriage licenses to homosexual couples, where such a license carries all the privileges and duties that a license issued to a heterosexual couple would carry. Furthermore, when one considers these claims within the context of the Full Faith and Credit Clause of the Constitution, it also makes sense that each State would be required to recognize a homosexual marriage performed and licensed by another State.
To reconcile this seemingly worthy reasoning by the supreme Court with the metaconstitutional perspective, it’s necessary to recognize that the Court’s impeccable reasoning is based on premises that are inherently wrong. The wrong premise is the claim that States, counties, and municipalities are lawful in their performance of marriage rites, in their issuance of marriage licenses, in their tracking marriage certificates, etc. They are not. This premise is wrong. So this case is an example of how impeccable reasoning applied to erroneous premises yields erroneous results.
An obvious question to ask when one hears these claims is this: If States, counties, and cities, the traditional bearers of municipal laws, are banned from the marital arena, then what set of entities will do these marital tasks instead? The obvious answer is that churches, and other religious social compacts, have always been the repository of such tasks, and they should continue being so, even if they happen to be jurisdictionally dysfunctional. There has been collaboration between such churches and the state, in regard to marriages, that must end, because the state has no lawful authority in the marriage arena. A secular government, as a lawful secular social compact, has lawful authority to adjudicate contract disputes, including marriage contract disputes. But people who take a marriage contract dispute into a secular ecclesiastical court will probably not like the results, because such a court is bound to use the title-transfer model of contracts, and marriages are by their nature products of the promise-expectation model, the religious subset of the property-interest model of contracts. 85 So for most intents and purposes, under the natural rights polity, the whole marriage arena should be understood to be predominantly religious. This claim is confirmed by recognition that marriage is not a fundamental right in the same way that body ownership is a fundamental right. Marriage is a type of contract, and people have an unalienable right to contract. While body ownership is an inherent and fundamental aspect of being human, marriage is not. Marriage, like contracts in general, is a set of benefits and duties that accrue to people who choose to enter the contract. It is a function of human choice, and is not inherent in being human, even though the capacity to make that choice may be inherent. 86
There’s an important difference between a marriage license and a marriage certificate that should be acknowledged in passing. A license is merely permission from the state to do something that the state generally treats as illegal. So when were marriages between two people of the opposite sex ever illegal? (i)In the nineteenth and early twentieth centuries, interracial marriages were illegal. 87 (ii)In the early twentieth century, there were eugenics movements in many States that made it illegal for “unfit” people to be married unless they were first sterilized. (iii)It’s long been illegal for underage girls to get married without the permission of their parents or guardians. — By way of such illegalities, States started mandating some oversight authority over church weddings. Eventually, pastors, rabbis, priests, etc., became official arms of the state with regard to marriages, being signatories to marriage licenses. But from antiquity, marriages have been functions primarily of the church, and only peripherally of the state. According to the metaconstitution, marriage licenses, like many other kinds of licensure, should not exist under the auspices of the state, and therefore of States, counties, and municipalities, and also of the general government. — Marriage certificates merely certify that a marriage exists. It is little more than documentation showing that two people are married. Churches and other religious social compacts are as capable of fulfilling this certification function as any State.
The Obergefell supreme Court case arose out of fourteen cases in federal district courts in Ohio, Michigan, Kentucky, and Tennessee. Each of these fourteen cases had homosexual couples seeking to have their respective partnerships recognized by their respective State as a legal marriage. In each of these respective cases, the plaintiffs were suing the State officials responsible for enforcing the ban on homosexual marriages. In each case, the plaintiffs argued that the State’s ban on homosexual marriage violated the 14th Amendment. In each of these fourteen cases the respective federal district court ruled in favor of those homosexual plaintiffs. The respective States appealed their respective cases to the 6th Circuit Court of Appeals. The 6th Circuit consolidated the fourteen cases into a single case, naming the case after the first case on the list of fourteen, James Obergefell, et al., Petitioners v. Richard Hodges, Director, Ohio Department of Health, et al.
James Obergefell lived in Ohio with his partner, John. After John became terminally ill, James and John decided that they wanted to be married. So they went to Maryland, which recognized homosexual marriage, and got married. After returning to Ohio, John died, and Ohio refused to list James as surviving spouse on the death certificate. For the sake of having his name on John’s death certificate, and for the sake of whatever other privileges might accrue to him through the State’s recognition of the Maryland marriage license, James filed suit in federal district court, suing the director of the Ohio Department of Health.
After consolidating the fourteen cases, and reviewing their respective records, the 6th Circuit reversed each case, holding that the Constitution does not require States to perform homosexual marriages, and does not require any State to recognize a homosexual marriage performed in a different State. The plaintiffs filed a consolidated petition for certiorari at the supreme Court, and the supreme Court granted certiorari.
With these basic facts of the case established, it’s possible to examine the majority and dissenting opinions from the perspective of the hermeneutical prologue. Anthony Kennedy wrote the majority opinion, and it was joined by Ginsburg, Breyer, Sotomayor, and Kagan. Roberts, Scalia, Thomas, and Alito each wrote dissenting opinions. In general, Kennedy and company can be seen to be carrying on the agenda of the de facto secular humanist establishment, for the sake of all the good intentions and hellish consequences that that agenda entails. Generally, all four dissenters can be understood to be defending the de facto Protestant establishment, not because they are all good Protestants, 88 but for the sake of preserving the confederate republic, the fundamental structure of the united States.
The fourteen consolidated cases essentially posed two questions to the supreme Court: (i)Does the 14th Amendment require States to issue marriage licenses to homosexual couples? (ii)Is each State required to recognize a homosexual marriage legally performed in a different State? — The majority opinion answered both questions in the affirmative. Kennedy’s opinion claimed that marriage is a fundamental right protected by the 14th Amendment’s Due Process Clause and Equal Protection Clause.
As already indicated, marriage is not a natural right. It is a type of contract. Every human has the natural right to enter into contracts. The natural right to contract is global, meaning that because every human being is created in the image of God, every human being has that natural right. But the instant one moves from talking about the right to contract in general to speaking of some specific type of contract that is not inherently global, one stops speaking of natural rights and starts speaking of contractual privileges. From this perspective, marriage is not a right but a privilege. This distinction is extremely important because it relates directly to defining what about the incorporation doctrine is lawful and what about it is not lawful.
As already indicated, to the extent that the Bill of Rights is a partial enumeration of natural rights, the incorporation of those natural rights to the States is a move in the direction of the natural rights polity, and is therefore a good thing. To the extent that the incorporation doctrine incorporates anything other than the natural rights that are embedded in the Bill of Rights and Declaration to the States, it is suspect, and it could be acting on the side of the national consolidation. — Given that marriage is not a natural right, but is a privilege arising out of a natural right, it is a mistake to incorporate it to the States. In fact, both the States and the general government are secular social compacts, and therefore have no lawful place in the formation and recordation of any kind of contract other than whatever kinds of contracts are necessary to the formation of secular social compacts. Secular social compacts can adjudicate secular contracts in secular ecclesiastical courts, but they are ultra vires whenever they enter into the formation, as distinguished from adjudication, of contracts that have little or nothing to do with the formation of secular social compacts. Kennedy’s interpretation of the Due Process Clause and the Equal Protection Clause are therefore inherently wrong. He and his four cohorts do not properly discern the distinction between fundamental rights and more extraneous privileges.
The raw Constitution does not mention marriage and does not present marriage as a constitutional right. Nevertheless, Kennedy’s opinion cited four principles and traditions that supposedly undergird the constitutional right to marry. He also cited several supreme Court cases that presumably prove that according to the supreme Court, marriage is a constitutional right. Here we’ll deal first with the supreme Court cases and second with Kennedy’s four principles and traditions.
We’ll only look briefly at two supreme Court cases that supposedly prove that supreme Court jurisprudence holds that marriage is a constitutional right. Looking at these two cases should be sufficient to show that the claim that they and other cases prove that marriage is a constitutional right is specious. We’ll also look at a third case that shows, supposedly, that because the supreme Court has legalized homosexual acts, homosexuals can no longer be banned from being married on the grounds that they do such acts as part of their marriage practices.
(i)In Loving v. Virginia, 388 U.S. 1 (1967), the supreme Court unanimously invalidated State "bans on interracial unions". 89 In that opinion, the Court "held marriage is ‘one of the vital personal rights essential to the orderly pursuit of happiness by free men.’" 90 Because each State is a secular social compact, each State is out of bounds if it either bans or consecrates marriage. From the secular perspective, marriage is a type of contract into which people can either enter or refuse to enter as they please. Secular government has no say about the choice, either pro or con. So the supreme Court was perfectly justified in holding in Loving that "bans on interracial unions" by any State are invalid. On the other hand, when Loving claimed that marriage is "one of the vital personal rights essential to the orderly pursuit of happiness by free men", it missed the mark. The right to contract is equally as fundamental to being human as the right to own property. Having primary property is inherent in being alive on this earth with a physical body. Having secondary property is not. The right to own secondary property exists as a capacity that can only become actual when one actually takes possession of the given secondary property. A similar situation exists with regard to contracts. The right to contract is inherent in being alive on this earth with a physical body. Actually being party to any given cognitive contract is not inherent in being alive. Participation in any given cognitive contract only becomes actual when one actually cognitively consents to participation in the contract. This is as true of marriage as it is of any other kind of cognitive contract. When Loving claimed that marriage was "one of the vital personal rights", it confused and conflated this distinction between primary and secondary. The right to contract is primary. The privilege of participating in any given cognitive contract is secondary, even if the cognitive contract happens to be a marriage. So marriage is essentially a privilege and not a natural right. So Kennedy and his cohort erred in claiming that marriage is "one of the vital personal rights essential to the orderly pursuit of happiness by free men". There’s no doubt that among cognitive contracts, marriage is one of the most profound and essential, and is second only to the cognitive contract to which each of God’s elect is drawn when justified. But it is still not so essential that it demands violating the distinction between secular social compacts and religious social compacts. This is evident simply by looking closely at the jurisdictions and chronological distinctions of the Bible’s Covenants.
(ii)In Zablocki v. Redhail, 434 U.S. 374 (1978), the supreme Court addressed a Wisconsin statute that essentially banned any non-custodial parent who was in arrears in child-support payments from remarrying. The Court held that the statute was a violation of the Equal Protection Clause. The Court came to this conclusion based largely on its agreement with the supreme Court’s opinion in Loving, which held that the right to marry is fundamental. We’ve already dealt with that claim, and we have no obligation to concur with the Zablocki decision on that point. But the State’s purported interest in creating the statute in the first place needs to be examined here. Doing so will show that even though the Court’s decision in Zablocki, like the Court’s decision in Loving, was overall good, its reasoning in reaching the respective conclusions was weak. — As is clear in the Zablocki opinion, the Wisconsin statute was aimed at keeping the children of divorced couples from becoming "public charges". Because States are secular social compacts, they have no business conducting marriages. They also have no business running entitlement programs. If they have no welfare programs, then it’s impossible for children of divorced couples to become "public charges". Therefore, on that basis, and not on the basis of marriage being a fundamental right, the Wisconsin statute should have been nullified. Therefore, Zablocki, like Loving, doesn’t really establish marriage as a constitutional right.
(iii)In Lawrence v. Texas, 539 U.S. 558 (2003), Justice Kennedy’s majority opinion held, "The Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause." 91 This case overruled the line of supreme Court opinions that culminated in Bowers v. Hardwick, 478 U.S. 186 (1986). In Bowers, the supreme Court upheld a Georgia sodomy statute that criminalized private oral and anal sex between consenting adults. That decision was obviously an exercise in maintaining the de facto Protestant establishment. By overruling Bowers, the Lawrence decision was essentially an exercise in pushing the de facto secular humanist establishment. Lawrence made consensual sodomy legal nationwide. That’s a crucial precursor to allowing sodomites to marry. — In fact, because the general government, States, counties, and municipalities are all presently secular social compacts by default, although highly dysfunctional jurisdictionally to be sure, none of these entities has lawful subject matter jurisdiction in making sodomy illegal. Because of that, Bowers was a bad decision and Lawrence was a good decision. The shift in Court opinion from 1986 to 2003 shows how fickle the Court can be, how it overturns stare decisis whenever it entertains political movements, and how the Court’s jurisprudence is really not grounded on fundamental principles. In genuinely Christian religious social compacts, sodomy will always be illegal and rightly so. But sodomy is outside the lawful subject matter jurisdiction of lawful secular social compacts, similar to the way marriage is outside the lawful subject matter jurisdiction. So it’s an inherently nefarious act for the justices on the supreme Court who are dedicated to the de facto secular humanist establishment to be using Lawrence as a stepping stone to forcing homosexual marriage on the States. — So neither sodomy nor homosexual marriage nor heterosexual marriage is a constitutional right. Given that they are consensual, each is an act or status about which no secular social compact, including the Constitution, has anything to say, either pro or con.
Given that this commentary on these three cases is adequate treatment within the context of the Obergefell decision, we can move on to examine Kennedy’s claim that there are four principles and traditions behind the presumed constitutional right to marry. Kennedy uses his skewed understanding of Court precedents to make these claims.
(i)Kennedy’s first principle "is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy. . . . Like choices concerning contraception, family relationships, procreation, and childrearing, all of which are protected by the Constitution, decisions concerning marriage are among the most intimate that an individual can make." 92 The fact that under the de facto Protestant establishment the States and general government interfered in "contraception, family relationships, procreation, and childrearing" is a defective reason for having the general government continue such interference under the auspices of the de facto secular humanist establishment. By concocting secular humanist alternatives to traditional Christian morality, Kennedy was doing no one any real favors. The fact that the supreme Court has interfered in marriage in the past is no good reason for it to continue doing so into the future. This is especially true given that such continued interference requires, by default, the use of Kennedy’s redefinition of what marriage is.
(ii)Kennedy claimed that according to the Court’s jurisprudence, "the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals". 93 Again, Kennedy relies on the Court’s, and the secular governments’, past interference in marriage to establish that the Court and the secular governments should continue interfering. So he merely tweaked a bad idea as though that would fix the problem. It doesn’t. In fact, whether the privilege of marrying "is fundamental because it supports a two-person union unlike any other" is irrelevant to every secular social compact because such consideration is outside the compact’s subject matter.
(iii)The third of Kennedy’s "principles and traditions" was his claim that the "right to marry . . . safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education". 94 He was trying to prove that because supreme Court jurisprudence has such esteem for marriage, and because equal protection demands that the Court not discriminate in regard to same-sex versus opposite-sex, the Court must allow homosexuals to marry. From our perspective, the perspective arising out of the Bible by way of the hermeneutical prologue, Kennedy and cohort are operating outside their official authority by even discussing this subject in their official capacity. The fact that marriage "safeguards children and families . . . " is irrelevant to their official duties. Rather than admit that both the de facto Protestant establishment and the de facto secular humanist establishment are ultra vires when they claim any inherent authority over marriage, Kennedy and cohort clutch powers the Constitution does not grant to them.
(iv)The fourth and final item in Kennedy’s "principles and traditions" is that "marriage is a keystone of our social order". 95 Again, our answer is necessarily, So What! Kennedy cites de Tocqueville and various supreme Court opinions to show that his claim is true, and that because it’s true, homosexual couples need to be able to participate in that "keystone". Kennedy is still not understanding that the fact that marriage is extremely important doesn’t condone the abandonment by any secular social compact of its inherent subject matter jurisdiction.
Kennedy’s opinion claimed that,
While the States are in general free to vary the benefits they confer on all married couples, they have throughout our history made marriage the basis for an expanding list of governmental rights, benefits, and responsibilities. These aspects of marital status include: taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; medical decision-making authority; adoption rights; the rights and benefits of survivors; birth and death certificates; professional ethics rules; campaign finance restrictions; workers’ compensation benefits; health insurance; and child custody, support, and visitation rules. 96
Of course, Kennedy’s claim is that because the States make these "rights, benefits, and responsibilities" available to heterosexual couples, the States must also make these available to homosexual couples for the sake of Due Process and Equal Protection. Of course, there’s no sign that it ever crossed Kennedy’s mind that possibly the States were operating outside their lawful subject matter jurisdictions by offering these "rights, benefits, and responsibilities" in the first place. Of course, they are all ultra vires. Most of these are evidence that the States are meddling in private contracts in a way that they should not. Each is an example of how the States are now, and have been for a long time, operating outside their lawful subject matter jurisdictions as secular social compacts. Rather than trying to remedy this problem at its roots, Kennedy and cohort insist on expanding the unlawfulness of the States by providing the same "rights, benefits, and responsibilities" to homosexual couples through homosexual marriage. It shouldn’t need to be said, but we’ll say it anyway: That’s just dumb.
Based on the majority opinion, the supreme Court reversed the 6th Circuit Court of Appeals, holding that (i)States must issue marriage licenses to homosexual couples, and (ii)each State must recognize homosexual marriages performed in other States. So the ban on homosexual marriages has been lifted on a national basis, and the march towards the Tower of Babel redux continues in force.
As mentioned, there were four dissents to the majority opinion. Roberts and Alito wrote dissenting opinions without joining anyone else. Scalia and Thomas each wrote dissenting opinions and joined one another, Roberts, and Alito. Roberts’ opinion states the obvious, that the Constitution doesn’t define marriage. Alito emphasized the same fact, claiming that because that’s true, the definition of marriage is reserved solely to the States. Roberts emphasized that marriage should be defined through the democratic process. According to our view, because both the general government and the States are secular social compacts, the definition of marriage is "reserved . . . to the people", quoting the 10th Amendment. This means that the definition of marriage is reserved to the people acting within their religious social compacts, and is out-of-bounds to every secular social compact. — Thomas’ dissent emphasized that the majority was distorting the meaning of the Due Process Clause. Scalia’s dissent emphasized that the majority was exercising a political "power to create ‘liberties’":
This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves. 97
That’s certainly true.
Each of these dissents, including Scalia’s, reaches back to the de facto Protestant establishment. But the de facto Protestant establishment failed to distinguish jural compacts from ecclesiastical compacts, and secular social compacts from religious social compacts. These dissents are therefore trying to get water out of a well that’s practically dry. The dissenters know that the majority opinion undermines the fundamental framework of the confederate republic, but they are at a loss about how to correct the majority errors by dealing with root causes. To do so, they, and "the People", must constrain secular social compacts to the exercise of the secular religion.
It’s imperative to see that none of these five cases would even exist under the natural rights polity. The Boerne case would never have come into existence because municipalities, being fundamentally secular social compacts, have no lawful authority to enforce zoning laws, or to designate some part of the city to be a historical preservation district. The Raich case would have never come into existence because secular social compacts, like the general and State governments, have no lawful authority to intervene in what people consume as medicines, and entities like the CSA and the DEA can therefore have no lawful existence. Likewise, the UDV case would have never come into existence because secular social compacts have no lawful authority to intervene in what people consume as sacraments. The Medellin case would have never come into existence because, as a lawful secular social compact, the general government is banned from participating in treaties that encourage it to abandon its lawful subject matter jurisdiction, and its fundamental commitment to the natural rights polity, as Article 36 of the VCCR and the Optional Protocol do. The Obergefell case would have never come into existence because the States, as secular social compacts, would never define marriage, and would therefore never define it as being inherently heterosexual or homosexual. — The fact that none of these five cases would even exist under the natural rights polity is evidence that secular governments are currently causing more problems than they’re solving.
Clearly, our nation – at every level of the tiered jurisdictional system – is tending to deny free exercise and have a Disneyland-like police state. It is therefore following the Soviet Union and the Tower of Babel to oblivion. The nation is also failing in its most fundamental purpose, bringing justice to perpetrators of bloodshed. Since in a police state, government authorities are the primary perpetrators of bloodshed, it’s no surprise that many criminals who deserve retribution go without it, while many people who do things that are prohibited by jurisdictionally dysfunctional laws, where those things are not bloodshed, are treated as perpetrators of bloodshed. As a culture, we are in very serious trouble, more from our own mismanagement than from any terrorist or other foreign or natural threats. Apathy, ignorance, and inertia are three of our biggest enemies.
In spite of the fact that the supreme Court is deeply wrong in its interpretation of the Constitution in many different ways, it is probably less so than the two political branches. Above all else, this appears to be because the Court has a sincere commitment to stare decisis, the core of its interpretational policy. This tends to steer it away from political influences. On the other hand, there is ample evidence that the Court deviates from stare decisis when the political branches force it to, or when it entertains political influences, as it did in Obergefell. Such a flood of politics into the Court is what happened during the War Between the States and Reconstruction, and what happened monumentally during the "Progressive Era" and the "New Deal". There’s ample evidence that this is happening again, as a result of this struggle between the forces of globalization and the forces attempting to preserve the confederate republic. The supreme Court and the judicial branch in general are inherently dedicated to interpreting the law within the context of the combination of the raw Constitution and stare decisis. But the courts have also made allowances for the subversion of both Constitution and stare decisis by way of four overriding and related mechanisms. The mechanisms are, (i)the failure to recognize that the general government is a secular social compact and not a religious social compact; (ii)allowances for the development of a fourth branch of government, the Administrative Branch; (iii)the failure to recognize that States, counties, and cities are all generally secular social compacts and not religious social compacts; and (iv)allowances for the international meddling in the domestic affairs of the united States through failure to adhere to the secular religion as it applies globally. These allowances for subversion all derive from weaknesses in the organic system that are now allowing a cabal of globalists to undermine the system entirely. If these weaknesses in the system are not remedied very soon, then the system will succumb to the Tower of Babel redux.
To fight this social decay, it’s imperative that Americans, and people around the world, refuse to cooperate with the forces of globalization, and adhere instead, at every possible opportunity, to the natural rights polity. As described in the hermeneutical prologue, this fight naturally forms a pincer strategy. One side of the pincer emphasizes the formation of lawful religious social compacts. Because the Christian churches in the united States, and around the world, have been decimated by globalist influences (including a large variety of dubious theologies) over many decades, it’s now imperative to rebuild the Church from the ground up by focusing on reconstructing churches as lawful religious social compacts. The other side of the pincer strategy emphasizes the conversion of existing jurisdictionally dysfunctional secular social compacts into jurisdictionally lawful secular social compacts.