In the aftermath of the 2012 election’s gloomy choice, I wrote a blog post in which I noted Alabama Chief Justice Roy Moore’s promising call to His supporters: “Go home with the knowledge that we are going to stand for the acknowledgment of God.”
As I hoped and expected when I wrote the article, Chief Justice Moore is now proving true to his word. Under his leadership, the Alabama judiciary is refusing to surrender the power of his state and its people over matters the Constitution’s 10th Amendment clearly reserves “to the States respectively, or to the people.”
Since the U.S. was founded, the Congress and the federal courts respected the constitutionally reserved power of the people, in their respective states, conscientiously to establish and maintain civil respect for the exercise of individual right that, by reproducing and preserving human offspring, directly serves the common good of their society, and indeed of humanity itself. The people exercise their power in this regard, in and through private and voluntary associations (such as, for example, their organized religious institutions), or by force of laws enacted by their duly elected representatives in state government.
Thanks, however, to a slew of perverse fiat judgments by some elements of the federal judiciary, a crisis is developing that has the potential to destroy both our Constitution and our civil peace. Those decisions fabricate and seek to impose a “right to marry” on behalf of a form of human sexual activity hitherto pretty universally regarded as beyond the pale of right, or the possibility of marriage in any rightful sense of the term. These fiat judgments overturn the concept of unalienable right, rooted in the authority of the Creator, on which the independence of the United States was founded. In its place the fiat judgments seek to impose a licentious concept of right, indistinguishable from arbitrary freedom and therefore limited and constrained by nothing, more or less, than the will and convenience of those who happen to be society’s dominant powers.
Though they hide the truth behind the fig leaf doctrine of a “living constitution,” they can achieve their purpose only by pretending that provisions of the Constitution inconsistent with their whims are to be treated as dead letters. For a long time, this was the fate of the 10th Amendment. It continues to be the fate of the Ninth Amendment. Both are, however, the subject of new interest from Americans determined to preserve the sovereign self-government of the American people against the ongoing elitist faction campaign to overthrow it.
So it may yet prove to be the case that the Constitution’s Ninth and 10th Amendments, like the daughter of the synagogue ruler in the Bible (Mark 5:39), are not dead. It seems so only because American patriots are sleeping. The stand being taken by Chief Justice Moore and the people of Alabama may yet rouse them to take action. But if so, in order to be effective they will have to think through and prepare for the difficulties involved in any revival of authentic constitutional government.
In this regard they need to realize that, contrary to the careless language routinely employed even by its ardent advocates, the 10th Amendment does not speak of states’ rights, it speaks of the powers reserved to the States or the people. The current judicial assault against those powers is being conducted in the name of rights. As I have argued elsewhere, the fundamental principles and premises of American liberty have, from its first beginnings, required Americans to acknowledge that a valid claim of unalienable right limits and constrains the power of government, for they fall along the line that distinguishes a just exercise of power from its intolerable abuse.
In the context of America’s understanding of justice, a constitutional argument that evokes a speciously fabricated right (such as the specious “right” of homosexuals to marry) must be met by an argument that evokes fundamental and unalienable right. Because the latter is rooted in the will and power of the Creator (the ultimate authority from which the people’s authority to govern themselves is derived), it trumps any right fabricated by human will and power.
As I have elsewhere shown, the logic of American constitutional liberty in this regard is nearly self-evident. The U.S. Constitution’s Ninth Amendment applies that logic when it plainly states that “the enumeration in the constitution, of certain rights shall not be construed to deny or disparage others retained by the people.” Unalienable rights, as endowed by the Creator, including the exercise of right from which the natural family arises, are antecedent to all human law and government whatsoever. They are, therefore, undeniably among the rights the people retain. Obviously, no right fabricated by judicial fiat on the basis of the constitutionally enumerated rights can be construed to disparage the rights of the natural family, or interfere with the reserved power of the people to preserve and respect them, privately and/or by laws duly enacted by their state governments.
I hope and expect that people now standing in defense of that liberty will ponder the Ninth Amendment’s significance. It may or may not have some effect on judges and justices determined to discard constitutional provisions that limit the dictatorial power of the elitist clique they now loyally serve. Be that as it may, however, on the basis of its logic we can rediscover the solid ground of reason and faith that inspired America’s founding generation to stand, against all odds, in resistance to tyranny. We can rekindle the courage that will allow us to endure even the prospect and rigors of war, if it comes to that, in order to secure the unalienable right of liberty by which we have been blessed, and which it is our duty to pass on to our posterity.
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