The Personal Website of Mark W. Dawson

Supreme, But Not Always Right

As I have stated in my Article, “Judges, Not Lords”, each branch of the government, the Executive, Legislative, and Judicial branches, take an oath of fidelity to the U.S. Constitution, and each branch needs to uphold the Constitution as it sees fit. As each branch is co-equal to each other, all three branches have the duty and responsibility to enforce the Constitution. No one branch is supreme in its duty or responsibility to enforce the Constitution. The Supreme Court is only supreme within the Judicial branch. The Supreme Court does have the responsibility to determine if the Legislature or Executive branch is exceeding its authority under the Constitution. Still, it has no authority to create law, rules, or regulations (this is often expressed as the ability to negate a law or piece of the law, but not to create law, rules, or regulations). When the Supreme Court rules outside the boundaries of the Constitution or does not review constitutional issues (known as Activism or Abdication), it is not upholding the Constitution. And, sometimes, the Supreme Court simply gets it wrong. And when the Supreme Court gets it wrong, it impacts our Natural and Constitutional Rights and our society for decades, if not permanently.

19^th Century:

The important 19th-century decisions often dealt with the Natural and Constitutional Rights of an individual over the powers of the Federal, State, and local governments. The following are, in my opinion, some of the most notorious examples of the Supreme Court getting it wrong in the 19th Century:

Dread Scott v. Sandford 60 U.S. (19 How.) 393 (1857), was a landmark decision of the U.S. Supreme Court in which the Court held that the U.S. Constitution was not meant to include American citizenship for black people, regardless of whether they were enslaved or free, and so the rights and privileges that the Constitution confers upon American citizens could not apply to them.

Perhaps the worst decision in Supreme Court history, this decision relegated slaves as property affording little or no protection of their Natural and Constitutional Rights. This decision was one of the precipitating factors that led us into the Civil War that wrought death, injury, disease, destruction, and great expense on both sides.

Slaughter-House Cases 83 U.S. (16 Wall.) 36 (1873), was a landmark U.S. Supreme Court decision that held that the Privileges or Immunities Clause of the Fourteenth Amendment to the U.S. Constitution only protects the legal rights that are associated with federal U.S. citizenship, not those that pertain to State citizenship. The decision consolidated two similar cases.

One of the reasons for the Civil War was to afford Federal protections for the Natural and Constitutional Rights of all American citizens. However, this Supreme Court decision stripped Federal protection and allocated these protections to the States. This allowed the states to pass discriminatory and Jim Crow laws against the former slaves and allowed a reign of terror through mob actions and organizations such as the Ku Klux Klan (KKK) against the former slaves in the Southern States.

Plessy v. Ferguson 163 U.S. 537 (1896), was a landmark decision made by the U.S. Supreme Court that codified the constitutional doctrine for racial segregation laws. In the eyes of the court as long as the segregated facilities were equal in quality, African-Americans could be served separately from the white population. The decision of the court is more commonly known as “separate but equal”. The decision legitimized the many state laws seeking to re-establish white supremacy in the former Confederate States after Reconstruction (1865-1877).

However, as “separate but equal” usually results in separation but rarely results in equality, this goal was not accomplishable. This ruling is also highly antithetical to our American Ideals and Ideas that all men are created equal and deserve equal treatment in the eyes of the law and in societal interactions. This decision codified into laws and practices the bigotry of many Americans and led to the implementation of many discriminatory laws, rules, and regulations that negatively impacted the Natural and Constitutional Rights of all people.

20^th Century

The important 20th-century decisions often dealt with the power of the Federal government over the activities of individuals and commerce. The following are, in my opinion, some of the most notorious examples of the Supreme Court getting it wrong in the 20th Century:

Helvering v. Davis 301 U.S. 619 (1937), was a decision by the U.S. Supreme Court that held that Social Security was constitutionally permissible as an exercise of the federal power to spend for the general welfare and so did not contravene the Tenth Amendment of the U.S. Constitution.

The Court’s 7–2 decision defended the constitutionality of the Social Security Act of 1935 by requiring only welfare spending to be for the common benefit, as distinguished from some mere local purpose. It affirmed a District Court decree that held that the tax upon employees was not properly at issue and that the tax upon employers was constitutional.

This decision redefined the general welfare clause of the Constitution to be applicable outside of the Article. I. Section. 8. enumerated powers of Congress. As such, it was now possible for Congress to spend monies on anything they deemed to be of the general welfare, subject only to superficial limitations that were often skirted by legal semantics and convoluted logic. This decision gave rise to the idea that the Federal government had the authority to enact Federal “Entitlements” that they deem proper and necessary for the common good of Americans.

Wickard v. Filburn 317 U.S. 111 (1942), is a United States Supreme Court decision that dramatically increased the regulatory power of the federal government. It remains as one of the most important and far-reaching cases concerning the New Deal, and it set a precedent for an expansive reading of the U.S. Constitution’s Commerce Clause for decades to come. The goal of the legal challenge was to end the entire federal crop support program by declaring it unconstitutional.

In this case, a farmer was growing his crops to support his family's needs and for sale at local markets. The Supreme Court ruled that as his activities had an indirect impact on interstate commerce, his actions were, therefore, subject to Federal regulation. Consequently, the Federal government could write laws, rules, and regulations upon all commerce that directly or indirectly impacts interstate commerce, which in practice allows them to regulate all commerce, as practically all commerce has an indirect interstate impact. As a result of this decision, the Federal government's scope and powers into all commercial activities henceforward increased dramatically and led to a large bureaucratic Federal government to enforce these powers.

Roe v. Wade 410 U.S. 113 (1973), was a landmark decision of the U.S. Supreme Court in which the Court ruled that the Constitution of the United States protects a pregnant woman’s liberty to choose to have an abortion without excessive government restriction. It struck down many U.S. federal and state abortion laws, and prompted an ongoing national debate in the United States about whether and to what extent abortion should be legal, who should decide the legality of abortion, what methods the Supreme Court should use in constitutional adjudication, and what the role of religious and moral views in the political sphere should be. Roe v. Wade reshaped American politics, dividing much of the United States into abortion rights and anti-abortion movements, while activating grassroots movements on both sides.

Perhaps no other decision since Dread Scott has been more controversial or divided our country than the Supreme Court decision on abortion. And perhaps no other decision since Dread Scott has been more wrongly decided. Wrongly decided because the decision did not take into account the Natural Rights of the unborn (as Dread Scott did not take into account the Natural Rights of slaves), but only considered the rights of the pregnant mother. My articles on “The Abortion Question” and “The Analogy of Abortion and Slavery” examine these Natural Rights in more detail. My point here is that the Supreme Court had the right to examine this issue but also had the responsibility to examine the Natural Rights of the unborn. Without examining both sides of the issue, an improper decision was a foregone conclusion. If they had examined both sides of the issue and ruled based on both sides of the issue, there would have been less vitriol controversy. If the American people disagreed with their decision after they examined both sides of the issue, then they could have worked together to resolve the issue by constitutional means.

21^st Century

The important 21st-century decisions often dealt with issues that were tangential Federal powers over State and local powers. The following are, in my opinion, some of the most notorious examples of the Supreme Court getting it wrong in the 21st Century:

Bush v. Gore, 531 U.S. 98 (2000), was a decision of the United States Supreme Court that settled a recount dispute in Florida’s 2000 presidential election. The ruling was issued on December 12, 2000. On December 9, the Court had preliminarily halted the Florida recount that was occurring. Eight days earlier, the Court unanimously decided the closely related case of Bush v. Palm Beach County Canvassing Board. The Electoral College was scheduled to meet on December 18, 2000, to decide the election.

As the Constitution stated in Article II, Section 1, Clause 1:

“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.”

“Each State shall appoint, in such Manner as the Legislature thereof may direct,” makes it the responsibility of the State legislators to determine election procedures. The Supreme Court reached the proper decision by improper reasoning. They simply could have stated the legislators were responsible for the election, and the courts had no authority to intervene. If the people of a state were unhappy with their legislators’ actions, they had the possibility of not voting for the legislator in the next election. If the people were unhappy with the court’s decision, they had no recourse. In effect, this would have put the courts in the position of deciding an election and not the people. This is antithetic to a representative democracy elected by the people. The courts have the responsibility to determine if the election laws and procedures are constitutional and have Equality Under the Law & Equal Protection of the Laws, but they have no authority to intervene in an actual election except to make sure that the State election laws, as written, are enforced.

Kelo v. City of New London 545 U.S. 469 (2005), was a case decided by the Supreme Court of the United States involving the use of eminent domain to transfer land from one private owner to another private owner to further economic development. In a 5–4 decision, the Court held that the general benefits a community enjoyed from economic growth qualified private redevelopment plans as a permissible “public use” under the Takings Clause of the Fifth Amendment.

This decision expanded the bounds of eminent domain beyond what was meant by the Founding Fathers. The Founding Fathers envisioned the “public use” for all the public to utilize. This meant forts, public offices, public roads, and other property that any one of the public could use. They never envisioned the government seizing property from one person to sell to another person. I believe that the Founding Fathers would have been appalled by this decision, as this often happened to the colonists by the British government and was one of the contentions that led to the Revolutionary War.

District of Columbia v. Heller, 554 U.S. 570 (2008), is a landmark case in which the Supreme Court of the United States held that the Second Amendment protects an individual’s right to possess a firearm, unconnected with service in a militia, for traditionally lawful purposes, such as self-defense within the home, and that the District of Columbia’s handgun ban and requirement that lawfully-owned rifles and shotguns be kept “unloaded and disassembled or bound by a trigger lock” violated this guarantee. It also stated that the right to bear arms is not unlimited and that guns and gun ownership would continue to be regulated. It was the first Supreme Court case to decide whether the Second Amendment protects an individual right to keep and bear arms for self-defense.

As the Constitution states in the Bill of Rights Amendment II:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

I do not understand what part of “shall not be infringed” does the Supreme Court does not understand. Regulating a person’s Natural Right is infringing on their Natural Right. As I have stated in my article “Natural, Human, and Civil Rights”, the right to keep and bear arms is a natural right. The Right to Keep and Bear Arms is the right to protect yourself, your family, your neighbors, and society from all enemies, both foreign and domestic. These enemies may be criminals, mobs, insurrectionists, and even a government that infringes on your Human Rights. Without this protection, you cannot have Life, Liberty, and the Pursuit of Happiness, as stated in the Declaration of Independence. The Supreme Court needs to strike down all laws and regulations regarding gun control as an infringement on your Natural and Constitutional rights. If crimes are committed utilizing a firearm, then criminal arrests and prosecutions should occur and not the banning of firearms. Just as if crimes are committed utilizing a knife, then criminal arrests and prosecutions should occur, and not the banning of knives. And just as if crimes are committed utilizing a club, then criminal arrests and prosecutions should occur, and not the banning of clubs. This reasoning can go on ad nauseam. Criminal acts need to be prosecuted and not the banning of items utilized in a crime. Just as you have a Natural and Constitutional right to free speech, you have a Natural and Constitutional right to keep and bear arms.

National Federation of Independent Business v. Sebelius 567 U.S. 519 (2012), was a landmark United States Supreme Court decision in which the Court upheld Congress’ power to enact most provisions of the Patient Protection and Affordable Care Act (ACA), commonly called Obamacare, and the Health Care and Education Reconciliation Act (HCERA), including a requirement for most Americans to pay a penalty for forgoing health insurance by 2014. The Acts represented a major set of changes to the American health care system that had been the subject of highly contentious debate, largely divided on political party lines.

For the first time in United States history, it was required that its residents purchase a commercial product or face a fine for not doing so. Regulation of non-economic activity under the Commerce Clause is possible only through the Necessary and Proper Clause. The Necessary and Proper Clause confers supplemental authority only when the means adopted to accomplish an enumerated power are ‘appropriate’, are ‘plainly adapted to that end’, and are ‘consistent with the letter and spirit of the constitution.’ Requiring citizen-to-citizen subsidy or redistribution is contrary to the foundational assumptions of the constitutional compact. As such, I believe that the Supreme Court required a redistribution from its citizens to health insurance companies, which is plainly unconstitutional. This is not the same as a state automobile insurance mandate, as this mandate is for the privilege of driving an automobile on State and Locality government-owned roads. The Supreme Court also redefined the Affordable Care Act fine as a tax, even though both sides of the issue declared it was not a tax. In effect, the Supreme Court rewrote the law to shoehorn it into constitutional status. The Supreme Court used “Torturous and Convoluted Reasoning” to accomplish this feat. In doing so, it became a proactive court decision that encroached on the Freedoms and Liberties of the American people.

Obergefell v. Hodges, 576 U.S. (2015) is a landmark civil rights case in which the Supreme Court of the United States ruled that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The 5–4 ruling requires all fifty states, the District of Columbia, and the Insular Areas to perform and recognize the marriages of same-sex couples on the same terms and conditions as the marriages of opposite-sex couples, with all the accompanying rights and responsibilities.

Nowhere in the Constitution is there any mention of marriage. Therefore, marriage is covered under the Bill of Rights Amendment 10:

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

As the Constitution and its amendments do not directly address marriage, it can be inferred that this is reserved to the states or to the people. Marriage is an institution that is defined and regulated by state laws. Therefore, it is the States right to define the parameters of marriage. If the States wish to include homosexuality within their marriage laws, then they have every right to do so.

As to the question ‘Is a marriage a Natural Right?’ I would note that nowhere in history has there been an assertion that marriage is a Natural Right. There is no question that, as humans, we have the right to freely associate with anybody we choose to. This association may be in any form that both parties are agreeable to. As I have stated in my observation “Homosexuality and Marriage”, homosexuals have Natural Rights. Therefore, heterosexual and homosexual associations are a Natural Right. There is also a human right to privacy. What you do in the confines of your own home is your business, as long as it does not violate the Natural Rights of others who may reside in your home or commit criminal activities. The government has no business of being involved in what happens in your free associations or privacy rights, except to protect the Natural, Constitutional, and Civil Rights of others with whom you are involved.

I believe that a State, or States, can allow for a homosexual marriage if this allowance is made through the normal legislative process (i.e., not court action) of the State or States. To do so otherwise is to infringe upon the liberties and freedom of the people to determine what is permissible, or not permissible, within their State. To do otherwise is a violation of the 10th Amendment of the Constitution.

Non-Rulings

When the Supreme Court refuses to address a Constitutional issue, it often does this by narrowly tailoring its ruling to skirt the constitutional issue or rejects the case on the grounds of standing. In law, standing, or locus standi, is a condition that a party seeking a legal remedy must show they have by demonstrating to the court sufficient connection to and harm from the law or action challenged to support that party’s participation in the case. And many Judges and Justices are utilizing Legal Standing to reject Constitutional challenges to avoid ruling on contentious constitutional issues. My Article, “Legal Standing vs. Constitutionality”, examines this issue and proposes a remedy to the misuse of Legal standing regarding constitutional issues.

The most notorious example of the Supreme Court rejecting a contentious constitutional issue based on ‘Standing’ is the challenges to the voting procedures in the Presidential Elections of 2020. The failure of the Supreme Court in acting on the issues of the 2020 elections on the suspicions of outright vote fraud, as well as the veracity of the allegations of vote fraud, and the possible unconstitutional actions of the State Executive branches and State Judiciaries in violations of the State Legislatures laws of elections are of supreme importance in our democratic process of assuring a free and fair election.

If these allegations of vote fraud and unconstitutional actions prove to be true, then we have an assault on our Freedoms and Liberties. By not taking on a Supreme Court review, by means of legal sophistry in denying these lawsuits based on ‘Standing’, the actions by the State Executive Officials and State Courts of these alleged violations cannot be determined if they were a violation of the Constitutional Right of the State Legislatures to determine the manner of elections as stated in the Constitution as “shall be prescribed in each State by the Legislature thereof”. This failure of the Supreme Court to determine the facts and truths of alleged election law violations or unconstitutional acts by State Executive officials and State Courts calls into question the validity of the results of the 2020 election. And the legality of these actions cannot be determined by State judicial review, as the very State Judges that would make these determinations are the same judges who are alleged to have violated the state election laws and the Constitution. Therefore, we would have the situation of a person being the judge of themselves.

All of this is antithetical to the principles of the Constitution and an assault upon our Freedoms and Liberties. I am aware that if the Supreme Court takes on this responsibility to determine if free and fair elections were violated in the 2020 elections, it will cause great consternation and disquietude to government and society in America. However, not taking on this responsibility may cause more harm to the government and society, as a large percentage of the people of America no longer have faith in the legitimacy of their elected leaders. And without a Free and Fair Election, we cannot have a republican government that is representative of the will of the people. If the will of the people is being subverted by possible corrupt voting practices and possible unconstitutional actions of the State Executive officers and State Judiciaries the Supreme Court needs to determine the facts and truths to correct this situation if it has occurred or to reassure the American people that the election was fair and just. The Supreme Court also needs to set the constitutional limits on the actions of the State Executive officers and State Judiciaries in elections to assure that this situation does not reoccur.

Such it is with other contentious constitutional issues that the Supreme Court skirts or refuses to consider on standing grounds. In their efforts to avoid becoming involved in political conflict and to preserve what they believe is the integrity of the Supreme Court, the Supreme Court is violating their sworn duty to “. . . faithfully and impartially discharge and perform all the duties incumbent upon me as [TITLE] under the Constitution and laws of the United States”. And I would remind the Supreme Court the best means to preserve the integrity of the Supreme Court is to preserve the integrity of the Constitution. When the Supreme Court skirts or refuses to consider on standing grounds contentious constitutional issues or makes a wrong decision, it imperils our Natural and Constitutional Rights. Such imperilment often leads to civil unrest and possibly a Civil War to preserve our Freedoms and Liberties.