Why the Supreme Court is Dangerous, Part 2: Reynolds v. United States (1878)

I suppose I should give some credit where credit is due. Recently the Supreme Court has been really slapping the liberal idealism around. This season they have overturned so many ideas that have been accepted and recited over the years as standards for American living that one has to wonder if the said liberals are beginning to think that the country isn’t what they thought it is.

This is a good thing and a bad thing.

The good thing is the fact that liberalism, the idea that the One Big Government should control, regulate and define everything in everybody’s life, to within an inch of their lives, and their definitions of what is right and wrong for everything and everybody should be applied to everything and everybody—by force if voluntary cooperation with their insanity cannot be voluntarily achieved—as a really big steaming pile of suckyness, is beginning to be recognized as such.

The very bad part of it is that the American People have accepted the false narrative that nine people in black robes—there has got to be a Lord of the Rings connection here—have the supreme authority to decide what ultimate truth is for all of us. And that they can do it using quotes from people, out of context, having nothing to do with what is actually written in the Constitution as the highest law of the land.

The most grossly misinterpreted of these rulings is based on a quote by Thomas Jefferson regarding “a wall of separation between church and State.”

If you have never read a Supreme Court ruling I very highly recommend that you give it a try sometime…if you ever find yourself afflicted with insomnia. If irrelevant data could be turned into a two-by-four, which someone could repeatedly club you in the head with until you become a babbling pile of semi-conscious and incoherent flesh, then you could build entire cities of houses with any single Supreme Court ruling. I mean really, they are a level of gibberish on an order of magnitude equivalent only to the writings of Al Gore.

Usually there is only a sentence or two that has anything to say that is of any importance at all. Now you can imagine the magnitude of my surprise when I found in the SCOTUS case, Reynolds v. United States (1878), four contiguous paragraphs which were not only historically significant but actually helpful in making up my mind about this whole “wall of separation” thingy that everybody keeps talking about.

The first thing to understand about this case is that George Reynolds was a member of the Church of Jesus Christ of Latter-day Saints. At the time that religion still widely accepted that it was okay for a guy to be hitched to more than one woman at a time. The feds burst in and clapped the guy in irons. He was dragged off and thrown in the hoosegow, charged with violating the Morrill Anti-Bigamy Act after marrying Wife #2 while still married to Wife #1. Reynolds argued that the law was unconstitutional under the First Amendment.

I’m not going to agree or disagree with Reynolds, although I must, as a guy, applaud his ambition and energy. Two wives? Seriously? Must be a better man than I am.

Anyhow here are the relevant paragraphs from the ruling, (interspersed with comments from yours truly, and I’m going to (bleep) out the sailor language.);

“(1 Jeff. Works 79.) (The preceding reference is from the works of Thomas Jefferson.) (Also it is appropriate to note that Thomas Jefferson, while his opinion is highly valued, was not in the country while the Constitution was debated, written or adopted, then serving as ambassador in France.) Five of the States, while adopting the Constitution, proposed amendments. Three -- New Hampshire, New York, and Virginia -- included in one form or another a declaration of religious freedom in the changes they desired to have made, as did also North Carolina, where the convention at first declined to ratify the Constitution until the proposed amendments were acted upon. Accordingly, at the first session of the first Congress, the amendment now under consideration was proposed with others by Mr. Madison. It met the views of the advocates of religious freedom, and was adopted. (Yay! They actually give relevant history!) Mr. Jefferson afterwards, in reply to an address to him by a committee of the Danbury Baptist Association, (You should read the whole thing, the letter from the Danbury Baptists and Jefferson’s reply, for context. Just Google it.) took occasion to say:

“‘Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of the government reach actions only, and not opinions -- I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion or prohibiting the free exercise thereof,” thus building a wall of separation between church and State. (Note: there is no phrase within the text of the Constitution that says anything about a wall. That’s just Jefferson’s analogy for his own personal ideas.) Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore man to all his natural rights, convinced he has no natural right in opposition to his social duties.’

“Coming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured. Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order. (Okay. Here’s the first problem. Jefferson is adopted as an authority. But Jefferson is not the text of the Constitution! The SCOTUS is sworn to uphold the Constitution, not the writings or personal opinions of Thomas Jefferson.)

“Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people. At common law, the second marriage was always void (2 Kent, Com. 79), and from the earliest history of England, polygamy has been treated as an offence against society. After the establishment of the ecclesiastical courts, and until the time of James I, it was punished through the instrumentality of those tribunals not merely because ecclesiastical rights had been violated, but because upon the separation of the ecclesiastical courts from the civil the ecclesiastical were supposed to be the most appropriate for the trial of matrimonial causes and offences against the rights of marriage, just as they were for testamentary causes and the settlement of the estates of deceased persons.” (Here’s the second problem. Just where in the text of the Constitution does it give SCOTUS the (bleeping) authority to uphold (bleeping) world history according to their own (bleeping) personal value system and call that constitutional?! So (bleeping) what if the Pharaohs of Old believed some (bleeping) thing about some (bleeping) thing! As “odious” as they, or you, or I, or Sir Dingbat the Monk in England in the year 1292, might think it might be, none of that has anything to do with their authority under the Constitution.)

Okay. I just know someone out there is going to do their best to misconstrue what I just said as an endorsement for polygamy. That’s not the argument I’m making. The argument I am actually making is based on a demonstration that the Supreme Court, in order to reach this ruling, had to pull something from outside of the Constitution and say that it is constitutional.

 I know that there are people out there who think I’m way off base in saying that things that are constitution have to be included in the actual text of the Constitution. Look. If the standard for “constitutional” is “I am a Supreme Court Justice and I agree with someone outside of the Constitution—although what I think is nowhere within the Constitution, and I can find some quote that someone, preferably a Founding Father expressed it, out of context—then I can call it constitutional and everybody has to obey,” then the Supreme Court rules over us all without any regard to anything that is written or adopted as law.

And again, just as in my previous blog post, Texas v. White, the Supreme Court makes a “constitutional” landmark decision changing the course of the country based on something that has nothing to do with the actual text of the Constitution.

So the Supreme Court went way outside of the Constitution in order to make the ruling they wanted. The evidence is right there. For this post I just wanted to point out the source of the “wall of separation between church and state” and the simple fact that it has nothing to do with the actual written Constitution. From this point out in this post I’m going to go on into some of the other points of the case. They are important too as they show the degree which the Constitution has been violated at the level of the Supreme Court and that since the ruling happened in the 1800s it’s not a new thing.

Did they have any authority to rule on the case in the first place? I don’t think that they did. We have five things to consider: 1) we have a federal law; Morrill Anti-Bigamy Act. 2) We have a challenge to that law based on the First Amendment; “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” 3) We have the Tenth Amendment; “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.” 4) Article Three, Section Two; “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution.” 5) Article One, Section Eight is a list of all of the powers of Congress.

Let’s take the First Amendment point first. This is how Reynolds chose to challenge the law. Again I’m not supporting bigamy here but the decision does even point out within itself that there have been and are cultures that do hold with the practice. I’m not a guy to have two or more wives; one is quite enough, thank you! But I’m also not a guy that is compelled to tell everyone else who or how many they should or shouldn’t marry. There is a right and wrong here, in my opinion, but my opinion is not a matter of constitutional law. So I think the case, if ruled upon by the court at all, should have been ruled that it was a violation of Reynolds’s religious rights.

I call your attention to point #4 above, the Supreme Court can rule in all cases “arising under this Constitution.” This means that if it is unconstitutional the Supreme Court has no authority to rule on the case. At all.

Now for the thing that everybody missed which considers all of the rest of the points and isn’t even mentioned in the case. The subject of Point #5 above is a list of all of the powers of congress. It is strange that I see no power listed there for Congress or the federal government to define what a marriage is. Congress has no authority to write the Morrill Anti-Bigamy Act in the first place and it never should have been signed into law by any president upholding his oath to the Constitution. Thus the Tenth Amendment applies. Marriage between one person and another, and another, and another, or any combination of consenting people is not a federal issue. It is a State’s issue.

As I’ve said previously this is not an endorsement of bigamy or any other unusual combination of people who consider themselves to be married. I believe a marriage is between one man and one woman, consenting, of course. But it is simply not up to the federal government to tell me that under the Constitution.

That’s all a deviation from the main subject of this post though. The main idea is that there is, under the actual written Constitution, no “wall of separation between church and state”  inside of the Constitution. True, that they didn’t use that to rule the way they wanted to in this case but they did mention it which does make it precedent for later cases.

Why the Supreme Court is Dangerous: Part One

Why the Supreme Court is Dangerous: Part Two

Why the Supreme Court is Dangerous: Part Three

Why the Supreme Court is Dangerous: Part Four

Why the Supreme Court is Dangerous: Part Five