All the United States Supreme Court cases applying selections from the Bill of Rights to the states under the 14th amendment are based on legal ease, smoke and mirrors; not the “explicit” jurisdictional wording of the Constitution nor of The Bill of Rights-especially those in regard to religion: (a) there is absolutely no jurisdiction over religion granted to the federal administrative government at all in the Constitution of the United States and that issue was recognized on the state and federal level for near 160 years; nor, is there any jurisdiction granted at all to the federal administrative government of ANY fundamental right listed in the Bill of Rights. (b) actually, at state ratification of the Bill of Rights, the complete document was absolutely barred from any application to the states at all, just the administrative federal government.
The founding fathers clearly knew what “fundamental inalienable” rights were and in existence when the federal administrative Constitution and Bill of Rights were drafted and specially named some of the most important ones in the Bill of Rights to be specifically honored, protected and regulated in federal government administrative jurisdiction. The framers of the Bill of Rights specifically reserved the protection and regulation of those fundamental rights to the people in their state constitutions and laws but absolutely denied the federal government any jurisdiction to meddle in those named items (or any others) in the states. In the wisdom of the founding fathers the federal administrative government was also denied authority over direct subject matter regulation of religion, direct subject matter regulation of privacy and direct subject matter regulation of abortion-substantive, procedural, or collateral.
But progressively liberal United States Supreme Courts unilaterally, without specific constitutional amendments, usurped jurisdiction from the states anyway in 1940’s in religion and soon thereafter in privacy and abortion. The 14th amendment does not specifically grant jurisdiction over religion, nor the remaining named items in the Bill of Rights, nor abortion nor privacy to the federal government. But past, excessively liberal, United States Supreme Courts have resorted to tricky and esoteric logic and language. If you use enough “wise” words you can justify anything a liberal court wants under the 14th amendment or even a “penumbra” for cases under it for privacy and abortion not mentioned in the constitution or Bill of Rights. Since the US Supreme Court is the court of last resort for the country under our federal system of jurisprudence, whatever they spout becomes law-no matter how fallacious, metaphoric or, actually illogical and contradictory their ramblings might be to the written constitution! Those on the court should be dedicated to the written constitution not their whims.
When those liberal Supreme Court advocates of a “living and breathing” constitution (ignore the written one) had a problem in the past with jurisdiction not granted in the constitution they simply resorted to and based their decisions on smoke and mirrors and hundreds of words in metaphors, jumbled logic, poor history in legal decisions and twisted logic and inferences, but no existing, ratified constitutional words. Especially true in religion, abortion and privacy. These were always state issues from our formation. But, the US Supreme Court to advance their own radical philosophy built a house of cards on cases that have no written constitutional jurisdiction when they needed to and founded them on their replacement constitution written in wax not a granite and ratified constitution that all can read and rely on as being in granite until proper amendment changes; and, a wax constitution easily accommodated their their whims.
So, our Constitution and Bill of Rights which are enshrined in granite then simply become the subjective and easily amended creature of the sitting court of 9 men, not the words of the ratified constitution and Bill of Rights by hundreds of our forefathers. The fourteenth Amendment has become the unintended vehicle for subjective, not objective, merits and jurisdiction. Past liberal Supreme Courts, on a case-by-case basis, have arbitrarily subjected much to the jurisdiction of the court on a fallacious “preexisting fundamental rights” argument under the 14th amendment and then used a “penumbra” from those decisions to include jurisdiction over privacy and abortion. The only focal point of the 13th, 14th and 15th amendments, justly so, were slavery and protection of procedural rights of freed slaves.
Demonstrating this strained and truly fallacious logic in “privacy” and “abortion” Justice Blackmun in Roe v Wade, 1973, admitted the right to privacy is not in the original constitution at all but he subjectively felt the rights should exist in the constitution (any authorized amendment procedure would be precarious) because abortion (and privacy) is a fundamental right, guaranteed through the right of privacy. All through a “penumbra” of other rights enforced by the federal government in the Bill of Rights (also fallacious jurisdiction arguments) and abortion is therefore, a fundamental right under the right of privacy.
By way of explanation, a "penumbra" is simply the area of lighter darkness (the darkest is an umbra) on the other side of the earth when a shadow of the earth is blocking the direct rays of the sun. In other words, according to Blackmun, the bright constitutional light of the other improperly decided Bill of Rights decisions and jurisdictional status, when taken together, which did not even mention privacy or abortion, should support constitutional status of privacy and abortion nonetheless because those cases created some light to point the way. In other words, the court would engrave these words in new jurisdictions into their wax constitution because at least there is a shadow of the right in those other decisions. More SUBJECTIVE legal ease etched into a wax constitution. Liberal courts have now gone to Penumbra's!
On the hand, in Dobbs vs Jackson, 2022, the present United States Supreme Court, in solid constitutional wisdom, returned to the wording or lack of it in the original constitution of the founding fathers written in granite and those who ratified it and based their decision on it, and found abortion is not a constitutionally granted right-it is not there! The emperor is naked no matter how many words say he is fully clothed! A child can see it! The liberal left is now berserk with hatred and violence for that court messing with their wax constitution which they wish to change as whim dictates and cloth with many words. Thay now seek to “stuff” the court with liberals and introduce term limits and other limitations. They cannot and will not abide the wisdom of the founding fathers as it may be amended by the people at any time by true amendments but, instead, advocate the subjective “wisdom” of a few.
The issue of the Supreme Court’s stability is foundational to the preservation of our constitutional republic establishing three independent branches of federal administrative government as checks and balances on each other; therefore, all conservatives must become educated and active in educating the public on how our government operates and also to vote to preserve this nation.
---------------------------
Jim S. Brooks, retired inactive attorney, SC Bar 911, 225 Heather Dr., Spartanburg, S.C., 29301,
