11 March 2016

Alabama Supreme Court: Proving Scalia Right in a Judicial Shot on Fort Sumter

It might be important to note that the most ancient and venerable of Supreme Court precedent decisions, Marbury v. Madison, is not compelled by the Constitution.  Competing theories of just how to ensure that laws do not violate the Constitution, until now the stuff of law school debates, may get another airing: 

Let's begin with this observation from the late, great Justice Antonin Scalia in his dissent in Obergefell, trenchant and insightful as usual:

Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall. The Judiciary is the “least dangerous” of the federal branches because it has “neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm” and the States, “even for the efficacy of its judgments.”[26] With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.

The Alabama Supreme Court, God bless them, has taken up the task to remind the Five Justices who legislated Obergefell of their impotence, if the people have but the will to stand for the law. 

Chief Justice Roy Moore, concurring:

    I agree with the Chief Justice of the United States Supreme Court, John Roberts, and with Associate Justices Antonin Scalia, Clarence Thomas, and Samuel Alito, that the majority opinion in Obergefell has no basis in the law, history, or tradition of this country. Obergefell is an unconstitutional exercise of judicial authority that usurps the legislative prerogative of the states to regulate their own domestic policy. Additionally, Obergefell seriously jeopardizes the religious liberty guaranteed by the First Amendment to the United States Constitution. 

    Based upon arguments of “love,” “commitment,” and “equal dignity” for same-sex couples, five lawyers, as Chief Justice Roberts so aptly describes the Obergefell majority, have declared a new social policy for the entire country. As the Chief Justice and Associate Justices Scalia, Thomas, and Alito eloquently and accurately demonstrate in their dissents, the majority opinion in Obergefell is an act of raw power with no ascertainable foundation in the Constitution itself. The majority presumed to legislate for the entire country under the guise of interpreting the Constitution. 

    The Obergefell majority presumes to amend the United States Constitution to create a right stated nowhere therein. That is a lawless act.  


    The Supremacy Clause, quite obviously, by this chain of reasoning, does not give the United States Supreme Court or any other agency of the federal government the authority to make its every declaration by that very fact the supreme law of the land. If the Court's edicts do not arise from powers delegated to the federal government in the Constitution, they are to be treated not as the supreme law of the land but as mere usurpation. 

    Thus, if precedents are “manifestly absurd or unjust,” “contrary to reason,” or “contrary to the divine law,” they are not to be followed. 

Justice Parker, concurring:

Obergefell conclusively demonstrates that the rule of law is dead.”


Obergefell is ‘no judicial act at all’ because it is ‘without principled justification.’”

Very, very strong words, but very, very true.

I don't expect this to stand, considering the overwhelming might of federal tyranny and the utter lack of moral spine of the country.  But, perhaps like the rise of Trump in the political sphere, it might be seen as a warning shot across the bow, if not the shot into Sumter just yet. Tyranny at some point forces a choice.

Keep an eye on this one.

1 comment:

Jack Smith said...

Bravo Alabama! So a question for a lawyer, in what forum would this likely be challenged?