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The Hughes Report
Friday, August 8, 2008
Russian, Georgian Armies May Clash
Topic: Armageddon
As the Geogian Army attempts to reestablish control of its South Ossetia province, Russia is sending in tanks.

Read about it:

Call me a conspiracy theorist, but ever since the apparent breakup of the Soviet Union in 1989, I have suspected the whole thing to be a ploy, a long-term strategy to prompt the US and Europe to disarm.  Recall the farce-like atmosphere in which Russian tanks were driving around aimlessly, without any clear orders, culminating with Boris Yeltsin climbing up on a tank to give an "impromtu" speech (before the cameras).  My intuition has always been that the old Soviet Union will some day coalesce once again, almost overnight, to threaten world domination.

This clash, along with Vladimir Putin's behind-the-scenes power-mongering and popular youth movement (eerily similar to the Hitler Youth) might well contribute to that eventuality.

Remember that you heard it here first.

Posted by hughes at 11:37 AM CDT
Thursday, August 7, 2008
Obama's View of the Bible
Topic: Politics
Barack Obama teaches that Biblical Principles cannot be applied to government and public policy.

View Videos:


Posted by hughes at 12:37 PM CDT
Wednesday, July 30, 2008
Ludacris - Hatin' on Obama Deniers
Topic: Race and Racialism

These are the lyrics to rapper Ludacris' new pro-Obama rap:

I'm back on it like I just signed my record deal
yeah the best is here, the Bentley Coup paint is dripping wet, it got sex appeal
never should have hated
you never should've doubted him
with a slot in the president's iPod Obama shattered 'em
Said I handled his biz and I'm one of his favorite rappers
Well give Luda a special pardon if I'm ever in the slammer
Better yet put him in office, make me your vice president
Hillary hated on you, so that b____ is irrelevant
Jesse talking slick and apologizing for what?
if you said it then you meant it how you want it have a gut!
and all you other politicians trying to hate on my man,
watch us win a majority vote in every state on my man
you can't stop what's bout to happen, we bout to make history
the first black president is destined and it's meant to be
the threats ain't fazing us, the nooses or the jokes
so get off your a__, black people, it's time to get out and vote!
paint the White House black and I'm sure that's got 'em terrified
McCain don't belong in ANY chair unless he's paralyzed
Yeah I said it cause Bush is mentally handicapped
Ball up all of his speeches and I throw em like candy wrap
cause what you talking I hear nothing even relevant
and you the worst of all 43 presidents
get out and vote or the end will be near
the world is ready for change because Obama is here!
cause Obama is here
The world is ready for change because Obama is here!

Editor's note:  he got his name right.  He just misspells it.

Posted by hughes at 4:53 PM CDT
Tuesday, July 29, 2008
Feminist Compares Democrats to Child Rape
Topic: Democrat Watch
Prominent Berkeley feminist Robin Lakoff, a Hillary supporter, has compared the treatment of Hillary Clinton supporters by the Democrat Party to child rape:

"I am reminded of a particularly chilling passage in Vladimir Nabokov's novel 'Lolita.'  Humbert Humbert, after raping the 12-year-old, is pondering why she has come back to his bed.  'You see,' Humbert tells the reader, 'she had absolutely nowhere else to go.'

"That's just how I feel.  And they want my enthusiastic support?  The Democratic Party can fend for itself."

Read it for yourself:

Posted on The Hughes Report

Posted by hughes at 1:33 PM CDT
Media Ignoring Edwards Affair, Love Child
Topic: Democrat Watch

Amongst the other huge stories that the biased mainstream media is ignoring is this one about failed Democrat vice-presidential candidate John Edwards.  Edwards was allegedly caught by reporters while leaving his mistress's hotel in the small hours of the morning.

Read about it:


Posted by hughes at 12:20 PM CDT
Saturday, July 12, 2008
AP's Terence Hunt Is No Journalist
Topic: Media Watch

I first saw it as a headline on my main Yahoo page.  I could not believe what I was reading:  "Bush tries to blame Congress for high energy costs."

What is wrong with this picture?  Terence Hunt of Associated Press wrote what amounts to an opinion editorial (Op-ed) masquerading as a bonafide news item.  It was also published in Newsweek at:


Journalism is reporting news objectively.  What Hunt has done is inject his opinion of the news, and what he thinks the public should think about it, even in his headline.  He could have appropriately enough said, "Bush Blames Congress for High Energy Costs," but no!  He has to smear the President.

Mr. Hunt, you call yourself a journalist?  Is this what you call objective journalism?   Have you no shame?  Is Newsweek now your private blog?

Shame, shame, Mr. Hunt. 


Posted by hughes at 10:52 AM CDT
Friday, July 11, 2008
Van Impe vs. the Oprah
Topic: God Help Us!

I happened to tune in to Bible teacher Jack Van Impe's show late last night, and heard him criticizing Oprah and her current New Age guru as false teachers. He showed a thick packet of information that he said was study materials put out by the guru, which Van Impe said he will be studying thoroughly and will report back on in a week.

I have seldom watched Oprah's show, but occasionally tune in to hear from one of her guests, like Bill Cosby or Dr. Oz. I have decided that Oprah must be one of the neediest persons in the world. Rich and famous as she is, she has sought out a series of gurus over the years to tell her how to live. Dr. Oz is one of these, and so was Dr. Phil.

She is also a compulsive eater. On several occasions when food was brought onto stage by some chef or dietician, I have seen her immediately start grabbing at it and stuffing it into her mouth.  She seemed quite rude, not asking permission, but diving in. It was also kind of funny, because she suddenly quit talking and was preoccupied by eating.


Join Liberalism Unmasked:


Posted by hughes at 5:14 PM CDT
Wednesday, July 9, 2008
"Black Hole" Called Racist
Topic: Race and Racialism
In Dallas, a county commissioners meeting erupted into pandemonium when two black commissioners objected to a white commissioner's use of the term, "black hole."

Kenneth Mayfield, who is white, referred to the Central Collections Office as a "black hole" because it had gained a reputation for losing paperwork.  John Wiley Price interrupted, saying that it should be called a "white hole."  Judge Thomas Jones demanded that Mayfield apologize for racial insensitivity.  

Mayfield tried to explain that the term "black hole" was a scientific term as well as a common figure of speech.

That is reminiscent of the 1999 firing of David Howard for using the term "niggardly," which means "miserly," and has nothing to do with race.  In that case, as well, black officials, who were ignorant of the word's meaning and overreacted, insisted that he should have realized how it sounded to black listeners.

Similarly, earlier this year, National Public Radio apologized for using the term "Dark Continent" to describe Africa.

Do we really expect electing Barack Obama to solve this racial hypersensitivity, or would that only make it worse?

Read about it:

Posted by hughes at 4:14 PM CDT
Updated: Friday, July 11, 2008 5:19 PM CDT
Yuk! Political Correctness Runs Amok!
Topic: Race and Racialism
The National Children's Bureau, a British government-funded group, suggests that toddlers who say "Yuk!" in reaction to ethnic food, refer to other children as "those people," or say that another person smells, may be racist.  The group issued a guide, the 366-page "Young Children and Racial Justice," to nursery school teachers, which states that "No racist incident should be ignored" and should be censured, whereas anyone who disagrees is racist.

The spectre looms that offhand remarks by innocent children might result in a criminal record, or their parents being hauled into court.  A 10-year-old boy has already been charged with racist slurs.

So are children who do not like Brussels sprouts anti-Belgian?

Read about it:

Posted by hughes at 4:09 PM CDT
Friday, July 4, 2008
Racializing the National Anthem
Topic: Race and Racialism
Around 1970, the small Czech-Bohemian town of Crosby, near Houston, was forced by government mandate to integrate its schools with the black community of Barrett, four miles away.  One problem:  the Crosby school mascot was the Buffalo.  The new black constituency associated the buffalo with a racial stereotype, so it was changed to the Cougar.  Similarly, another area school district, C. E. King, changed from Rebels to Panthers.  Their "old" mascot looked like a Confederate soldier.

Fair enough.  Call it sense and sensibilities.

On July 3, 2008, jazz singer Rene Marie was scheduled to sing the National Anthem at the Denver mayor's State of the City address.  What she did not bother to tell the mayor's office was that she had decided, "months ago," to no longer sing the national anthem.  Instead, she substituted her own version, to which she had adapted lyrics from the Black National Anthem.  The Black National Anthem was written by James Weldon Johnson, best known for his poetry series about black preachers, entitled "God's Trombones."

See:  http://www.black-network.com/anthem.htm

Ms. Marie, who justified her choice in the name of "artistic expression," seemed to relish the deception.  She told a reporter, "I pulled a switcheroonie on them," and said she "wouldn't change a thing" about what she had done.  Apparently, Ms. Marie has never been "really proud of her country."

There is nothing wrong with Johnson's song, but it is not our national anthem.  Is this what is to pass for unity today -- the submersion, or subversion, of our historical culture, the product of the great Melting Pot (or as some say, Stew Pot) of cultures, in deference to the overworked sensibilities and sensitivities of a minority of one minority?

Moreover, how radical and emboldened, if Barack Obama is elected president -- or if he is not -- can we expect this minority of racialists to become?

Read about it:

Posted by hughes at 5:50 PM CDT
Thursday, June 26, 2008
All the Justices Are White???
Topic: Supreme Court
Newsweek columnist Dahlia Lithwick tells us that all of the current
justices of the Supreme Court are white. Huh? And they are all male,
too, right?

No doubt this "error" is an intentional slap in Clarence Thomas's face.

She also notes that up to 3 justice chairs may be up for grabs during
the next administration. Judging from the crucial recent Court
decisions, all with a 5-4 margin, the choice of a president will
clearly be the major influence on the future direction of the country.

Read about it:

Join Liberalism Unmasked!

Posted by hughes at 1:34 PM CDT
Wednesday, June 18, 2008
While Blaming Bush, Democrats Get Sweetheart Loans
Topic: Democrat Watch
In case you missed the major Democrat scandal that has only been nominally reported by the mainstream media:

Sen. Christopher Dodd of Connecticut, recent presidential candidate and current chairman of the Senate Banking Committee, has been exposed for accepting a preferential home loan from Countrywide Financial Corp.  In a carefully worded statement, Dodd said that he "did not seek or expect any favorable treatment.  Just like millions of other Americans, we shopped around and received competitive rates."

Also implicated is Sen. Kent Conrad of North Dakota, chairman of the Budget Committee.  He insisted, "If they did me a favor, they did it without my knowledge and without my requesting it."  However, Conrad placed a personal call to CEO Angelo Mozilo of Countrywide asking for the mortgage.  An internal memo from Mozilo indicates that the fact that Conrad is a senator cemented the deal.

Let us not forget about recent revelations of the preferential home loan given to presidential candidate Barack Obama, and his ties to Tony Rezko, recently convicted for improprieties, and Jim Johnson, recently dismissed from the campaign.  Other Democrats implicated in the "new" scandal include Clinton Administration operatives Alphonso Jackson, Donna Shalala, and Richard Holbrooke.

This is the Congress that took power in 2006 on the promise to "clean up Washington."



Posted by hughes at 12:54 PM CDT
Saturday, June 14, 2008
A Father's Prayer
Topic: World War II
by General Douglas MacArthur

Build me a son, O Lord, who will be strong enough to know when he is weak and brave evough to face himself when he is afraid; one who will be proud and unbending in honest defeat and humble and gentle in victory.

Build me a son whose wishbone will not be where his backbone should be; a son who will know Thee -- and realize that to know himself is the foundation stone of knowledge.

Lead him, I pray, not in the path of ease and comfort, but under the stress and spur of difficulties and challenge.  Here let him learn to stand up in the storm; here let him learn compassion for those who fail.

Build me a son whose heart will be clear, whose goal will be high; a son who will master himself before he seeks to master other men; one who will learn to laugh, yet never forget how to weep; one who will reach into the future, yet never forget the past.

And after all these things are his, add, I pray, enough of a sense of humor, so that he may always be serious, yet never take himself too seriously.  Give him humility, so that he may always remember the simplicity of true greatness, the open mind of true wisdom, the meekness of true strength.

Then, I, his father, will dare to whisper, "I have not lived in vain."

Posted by hughes at 1:03 PM CDT
Updated: Friday, July 11, 2008 5:21 PM CDT
Tuesday, June 10, 2008
You Must Choose -- But Choose Wisely
Topic: Politics
If you are not tempted to vote for Obama, no doubt you know others who are.  Here are some links to information (or ammunition) so you or your friends may make an informed choice.  Also included is an enlightening recent article that calls the Obamas "Whine Connoisseurs."

Most liberal senator of 2007:

Obama on the issues:

Obama's voting record:

Obama on key votes:

Obama's missed votes:

"Whine Connoisseurs"

Posted by hughes at 2:09 PM CDT
Sunday, June 8, 2008
Letter Home from the War, 1945
Topic: World War II

In the effects of my late grandparents I found a copy of a letter written home from the war in 1945, and apparently typed up and distributed by his wife to friends.  His identity is lost, but he signed his name Earl, and his initials are ETR.  The letter expresses a cynicism fostered by being on the front lines of battle in the "real" war, brutalized and traumatized by the experience, even in "The Good War."

"They pay us $10.00 more per month and write a lot of Glorious crap about the battles won and lost.  Crap about the beautiful places we get to see, all the pretty girls that kiss us, etc. on into eternity.  They applaud our heroes and mourn our dead.  Pin metals (sic.) on our manly chests none of which is true or we want.

"It is hard to really explain how it is.  We don't want the glory, metals, or the pats on the back and as for the kisses.  Can you imagine there being joy amid a shable (sic.) of burned homes, death, distrust, and hunger:  When the dead are still lying there, Americans, Germans, old men, women and even babies.  When every anyone move (sic.) is made to relieve some wounded or to even get water or food you get shelled by artillery or a machine gun chatters.  Yes, we have lots of fun.

"After the haze of battle and the eternal smell of death moves on it is not too bad.  (They say time dulls all pain).  The people do come back to their homes and do line the streets and kiss the troops and cry for joy.  But remember the infantry is not back there.  They have moved on to another battle field.  It makes no difference to us where it is, France, Belgium, Holland, or Germany.  They are all the same.  The people look the same.  Dirty, hungry, afraid and always with something tied up in bundles that they treasured too much to leave behind.  But where at times it is so quiet that you can hear your own heart beat.  Times when we don't even whisper our prayers, but sit in the tense, electrified silence and commune with God or try to recall some vision of a happier day.  Or sit on guard for hours with your hand on your buddies (sic.) shoulder to keep him from groaning or crying out in his sleep.  Yes, we are a privileged few.

"I'm not asking for pity or anything else.  Only trying to explain how we live and how we feel.  We are not playing a game that we can quit any time but a game where one slip would be fatal.  You must have a hatred for your foe that blacks out everything else, fear, misery, hungery (sic.), pity or comfort.  You must not relax at any time (not even in your sleep) and keep with you at all times the eternal lust to kill and vigilance of the killer.  Yes, I am the same one that left home.

"Sometimes at night I hear the nurse walking.  For a moment I can't place myself and feel for my knife or gun.  Or sometimes hear the drone of a motor and start to duck.  I know I'm not nervous but it only takes time to realize that I am back here where everything is changed."

Posted by hughes at 6:07 PM CDT
Friday, June 6, 2008
On This Day in 1944
Topic: World War II
Take a few moments today to remember the men who died, and others who risked death, on this day in 1944 in the invasion of Normandy, known as D-Day, in order to conquer forces of evil.  The white crosses and stars of David still stand in fields beyond the beaches.  Thousands of fathers, mothers, and wives received telegrams from the government soon after that day, reporting that their sons and husbands were among the dead or missing.

Contrast these sacrifices, and those that followed, and the loyal support of all Americans for the war effort, practically without exception, with the efforts of liberals and the opposition party to defund the troops and undermine their morale in the present war against radical Muslims.

The news media today trumpets from the rooftops each disaster, every shortcoming, every friendly fire incident, as proofs against the present war.  Those who know the history of World War II know that there were disasters that dwarf any in the Middle East, there were friendly fire incidents manifold, there was widespread incompetence amongst the leadership, and there were many episodes of atrocity.  It has been said that had the American people known at the time how badly we were beaten by Rommel at the Battle of Kasserine Pass, they would have demanded that we pull out of the war immediately.  Patton's tanks were starved of gas by bureaucrats.  Troops entered the worst winter in 20 years without proper winter boots and clothing, and thousands were killed in the Battle of the Bulge.

War is a dirty business, a necessary evil.  Thousands would yet die in frontal assaults on Saipan, Iwo Jima, and Okinawa.  US ships approaching Japan were steadily decimated by Kamikazes.  After predicting losses in an invasion of the Japanese mainland, it was estimated that the bombings of Hiroshima and Nagasaki, which forced Japan to surrender, actually saved at least a million lives on each side.  To this day, my father, who about this time was being stationed on board the Battleship Alabama, says, "I am one of the two million."

As Tom Hanks said at a memorial honoring the Greatest Generation, "We had a job to do.  We didn't like it -- but we did it."

Finally, consider what the consequences would have been if, after invading France, Congress had decided the price was too high, and unilaterally pulled out our troops.  How long would our nation's economy had stood?  How long would our shores have remained uninvaded, and our nation remained free?


Posted by hughes at 1:26 PM CDT
Tuesday, June 3, 2008
"The Rest of the Gospel" Free Download
Topic: Christianity
My recent message, "The Rest of the Gospel," is now available for download free at the following link:


It can also be purchased on CD at:

You might also find the photo of a little white church on the CD cover interesting.  Saint Stephen's Episcopal Church was built in 1860 or '61 here in Liberty, and is on the state registry of historic buildings.  Since I took the photo years ago, the building was moved to the grounds of the Sam Houston Regional Research Center, a Texas history archive about 2 miles north of town.


Posted by hughes at 9:21 PM CDT
Saturday, May 31, 2008
Obama Promises Unilateral Disarmament
Topic: Politics
In 2007, Barack Obama spoke before the Caucus for Priorities, which proposes re-routing defense spending to social causes.  He promised,

"As president, I will end misguided defense policies and stand with Caucus for Priorities in fighting special interests in Washington.  First, I'll stop spending $9 billion a month in Iraq.  I'm the only major candidate who opposed this war from the beginning -- and as president, I will end it.

"Second, I will cut tens of billions of dollars in wasteful spending.  I will cut investments in unproven missile defense systems.  I will not weaponize space.  I will slow our development of future combat systems, and I will institute an independent defense priorities board to ensure that the Quadrennial Defense Review is not used to justify unnecessary spending.

"Third, I will set a goal of a world without nuclear weapons.  To seek that goal, I will not develop new nuclear weapons; I will seek a global ban on the production of fissile material, and I will negotiate with Russia to take our ICBMs off hair-trigger alert and to achieve deep cuts in our nuclear arsenals.  You know where I stand."

Read more:

See video:

In other words, Obama plans to gut US defenses.  If the US ceases to defend itself, it will soon be overwhelmed; then who else would step up to defend the world against Totalitarianism?  France?

Posted by hughes at 2:06 PM CDT
Updated: Tuesday, June 3, 2008 9:24 PM CDT
Thursday, May 29, 2008
The Duplicity of Scott McClellan
Topic: Politics
Scott McClellan is the son of attorney Barr McClellan and politician Carole Keeton Strayhorn.  The couple's other sons include Mark and twins Brad and Dudley, all connected in state or national politics.  Mark McClellan was appointed head of the FDA by President Bush, and is now Medicare director.  Barr McClellan, an operative in the Lyndon Johnson campaign, was later disciplined by the bar association for improprieties, and published a book that alleged that President Johnson was behind the John Kennedy assassination.

Strayhorn is the ultimate Austin political insider, daughter of UT law school dean W. Page Keeton, a local legend in the state's most liberal city.  She was elected the first woman mayor of Austin, appointed to the Board of Insurance by Democrat governor Mark White, elected to the Texas Railroad Commission, and then elected Comptroller.  At some point, in a field cluttered with Democrats, seeing the political winds shifting toward Republicans, Strayhorn switched parties.  As Comptroller, she stirred controversy by revoking the tax-exempt status of a Unitarian church, a decision later reversed.

After divorcing McClellan, Strayhorn consecutively married Curtis H. Rylander and Ed Strayhorn.  While running for governor in 2006, she called the incumbent a "weak leadin', ethics ignorin', pointin' the finger at everyone blamin', special session callin', public school slashin', slush fund spendin', toll road buildin', special interest panderin', rainy day fund raidin', fee increasin', no property tax cuttin', promise breakin', do nothin' Rick Perry phony conservative," evoking memories of Ann Richards' 1988 "born with a silver spoon in his mouth" speech.  In contrast, she characterized herself a "common-sense conservative" and "one tough grandma."  With a reputation for working against the interests of the party, she is at best described as a maverick, and at worst a "stealth Democrat."

Knowing Scott McClellan's progeniture, it was a surprise in the first place that he gained a front-line post in the Bush Administration.  But then, one of President Bush's greatest vulnerabilities has proved to be his magnanimity toward Democrats and holdovers from the previous administration.  Bill Clinton fired government lawyers wholesale upon entering office; Attorney General Gonzales fired eight, and was skewered by the news media.  With the benefit of hindsight, it stands to reason that many members of the Administration, presumed to be loyal, would turn out to be moles and turncoats.

    "A scorpion and a frog met on the bank of a stream.  'Carry me across on your back,' the scorpion proposed.  'How do I know you will not sting me?' asked the frog.  'Because if I do, I will die, too,' asserted the scorpion.

    "They set out, but in midstream, the scorpion stung the frog.  The frog started to sink.  Knowing they would both drown, the frog had just enough time to gasp, 'But why?'

    "The scorpion replied, "I am a scorpion, and that is my nature.”

Posted by hughes at 4:30 PM CDT
Updated: Thursday, May 29, 2008 4:38 PM CDT
Monday, May 19, 2008
The Most Dangerous Branch
Topic: Original Intent
A Thumbnail History of Supreme Court Revisionism

by Paul A. Hughes

Throughout the country, public officials solemnly swear to protect and defend the Constitution of the United States.  The Constitution defines our government and protects the rights of citizens and sovereign states.

The Framers expended much less ink on the Supreme Court than any other branch of government.  The Court was expected to be, in Alexander Hamilton’s words, “the least dangerous branch.”  From the beginning, however, judges and legal philosophers have sought to reshape government in ways that they could not achieve by democratic means as prescribed by the Constitution:  legislation and amendment.  Those who gain the power of the Bench too often succumb to the temptation of oligarchy, rule by an elite by judicial fiat == making the Supreme Court, in the end, truly “the most dangerous branch.”

The following short history is hardly comprehensive, but lists pivotal Court cases and trends that have effectively changed the meaning and intent of constitutional provisions.  These items reveal the desire of revisionists to deny the letter of the Constitution, while showing preference for special interests; a disdain for precedents and the democratic process, as well as the people; tortured interpretations of provisions in order to insure desired outcomes and create new law; the erosion of state and individual rights while trumpeting new, special rights; lofty language envisioning a “living” Constitution that ignores the actual Constitution; and an expansion of raw judicial power.

This history should be sufficient to convince the reader how crucial it is to elect a president and senators who will nominate and approve justices that truly believe the law means what it says, not what it can be made to say.

Calder v. Bull (1798)

In a minority opinion, Justice Samuel Chase objected to a legislative act on the grounds that it violated the spirit, though no specific provision, of the Constitution.

Marbury v. Madison (1803)

In its decision, the Court originated the principle, and assumed the power, of judicial review of legislation, not explicit in the Constitution.  Consequently, the Court opened the door to undermining the democratic process by overruling the will of the people, as expressed by their representatives.  Judge Robert Bork called Chief Justice John Marshall’s opinion “a curious blend, an essay resting the power to invalidate statutes of Congress on the original understanding of the Constitution and yet reaching the question of that power without justification.”[1]

Fletcher v. Peck (1810)

This case stems from the infamous Yazoo Land Fraud of 1794.  Marshall in his opinion proposed that there are natural limits to legislative power, in this case regarding the seizure of property, referring to “the nature of society and of government” for justification.  Justice William Johnson supported Marshall, stating flatly that “my opinion on this point is not founded on the provision in the constitution of the United States . . . ,” but rather, “the reason and nature of things” which, he hyperbolized, “will impose laws even on the deity.”

Gibbons v. Ogden (1824)

Marshall, in his opinion, suggested that the bare fact that power to regulate commerce was vested in Congress by the Constitution was sufficient to strike down steamboat regulation in New York.  Since Congress had not indeed acted in the case, this approach would effectively insert the judicial branch in the process at will, bypassing Congress.  This insertion principle has been adopted and applied to various cases to this day.

Dred Scott v. Sandford (1857)

Chief Justice Roger Taney, backed by a pro-slavery majority, actively sought to read a right to own slaves into the Constitution.  He cited the Due Process clause of the Fifth Amendment, which states, “No person shall . . . be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.”  Ignoring the plain meaning of the text, which simply mandates a fair process before seizure, Taney created the principle of “substantive due process,” asserting a slaveholder’s inherent right to his property.  Law professor John Hart Ely called substantive due process “a contradiction in terms.”[2]  The principle was later applied to Lochner v. New York, Roe v. Wade, and other decisions.

Hepburn v. Griswold (1870)

In finding against an act of Congress to issue paper money, Chief Justice Salmon P. Chase found, following Marshall, that the act was not “consistent with the spirit of the Constitution.”  He held that paper currency, being of no inherent value, violated the restriction that “no State shall pass any law impairing the obligation of contracts” (Article I, Section 10).  He deflected criticism that the provision applied only to the states, suggesting that the Framers “intended that the spirit of this prohibition should pervade the entire body of legislation . . . .”  Chase also regarded that the spirit of the Due Process and Just Compensation clauses of the Fifth Amendment had been violated.

Loan Association v. Topeka (1874)

The Court struck down a Kansas law that allowed cities to issue public bonds to encourage private business.  In the lone dissent, Justice Nathan Clifford wrote, “Courts cannot nullify an act of the State legislature on the vague ground that they think it opposed to a general latent spirit supposed to pervade or underlie the constitution . . . .  Such power is denied to the courts, because to concede it would be to make the courts sovereign over both the constitution and the people, and convert the government into a judicial despotism.”

Davidson v. New Orleans (1877)

Justice Samuel Miller, who had lead the activist majority in Loan Association, applied the principle of substantive due process originated in Dred Scott, asserting that a fair hearing alone was insufficient to deprive a citizen of property.

Allgeyer v. Louisiana (1897)

In order to strike down a state insurance compliance law, the Court expanded “liberty” in the Due Process clause beyond “liberty of person” to “the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary and essential to his carrying out to a successful conclusion the purposes above mentioned.”  This language left the determination of what would be deemed “lawful” entirely open to future interpretation by the Court itself, in denial of the democratic legislative process of the states.

Lochner v. New York (1905)

Justice Rufus Peckham, who had written the unanimous opinion in Allgeyer v. Louisiana, also wrote the majority opinion in Lochner.  The Court struck down a statute that limited working hours for bakers, asserting an inherent right to buy and sell labor.  In his opinion, Peckham expressed consternation at the people being “at the mercy of legislative majorities.”  Most notable is Peckham’s claim of judicial police power, by which courts may strike down legislation even in the absence of specific constitutional provision.

The New Deal (1933-)

Once President Franklin Roosevelt succeeded in packing the Court with cooperative justices, the judicial branch largely ignored Tenth Amendment provisions limiting federal power.  Businesses could no longer count on due process of law, as the federal government vastly expanded regulatory activity without restraint.

United States v. Carolene Products Co. (1938)

The Court upheld legislation prohibiting interstate shipment of a certain milk product.  The crucial item in the opinion, written by Chief Justice Harlan Stone, are the words “discrete and insular minorities.”  Those words, which appear in a footnote, stem from Stone’s musings on the Fourteenth Amendment relative to Due Process, and presumably refer to certain undefined minorities not otherwise enumerated in the Constitution.  The footnote effectively opened the door to a new era of minority and special interest politics.

Skinner v. Oklahoma (1942)

Buck v. Bell (1927) had previously upheld the forced sterilization of the mentally retarded in Virginia.  Oklahoma now passed a law whereby certain classes of repeat criminals could likewise be sterilized.  Justice William O. Douglas objected that the statute made some crimes punishable by sterilization while other crimes of similar gravity were not.  Moreover, he conceived procreation to be “one of the basic civil rights of man” that was “fundamental to the very existence and survival of the race,” opposing the law on the basis of the Equal Protection clause of the Fourteenth Amendment   Robert Bork later observed that the decision created the principle of “substantive equal protection” by being “really a substantive due process case masquerading as a decision under the equal protection clause.”[3]

The Warren Court (1953-1969)

Columbia Professor Milton Handler wrote that the Court led by Chief Justice Earl Warren was conspicuous for its “disrespect for precedent, even those of recent vintage, the needless obscurity of opinions, the discouraging lack of candor, the disdain for the fact finding of the lower courts, the tortured reading of statutes, and the seeming absence of neutrality and objectivity.”[4]

Brown v. Board of Education of Topeka (1954)

Brown combined multiple cases that were, as Justice Warren wrote, “premised on different facts and different local conditions, but a common legal question justifies their consideration together in this consolidated opinion.”  Together, they challenged the Plessy v. Ferguson precedent (1896), which had established the “separate but equal” principle.  Rather than rely on the Equal Protection clause of the Fourteenth Amendment, which had never historically been understood to prohibit segregation (and consequently thought weak), Warren’s opinion was based on evidence of unequal educational opportunity for black students and a “sense of inferiority” inherent to segregation.  In retrospect, some legal experts regret that the Court did not perceive in the text of the Constitution sufficient grounds for doing the right thing, resorting instead to a decision based purely on moral conceptions.  Others, however, consider Brown the archetype of a “living” Constitution and “progressive” judicial system freed from slavish dependence on obsolete language and ideas.

Bolling v. Sharpe (1954)

A school segregation case parallel to Brown, Bolling originated in Washington, D.C.  While Brown, not truly decided on Fourteenth Amendment grounds, was presumed to have satisfied its Equal Protection provision, that amendment applied only to the states, not to the federal District of Columbia.  The Warren Court, therefore, drew upon the Due Process clause of the Fifth Amendment, which is federal, gave it substantive status, and declared it equivalent to the Equal Protection clause of the Fourteenth Amendment.  This scheme served to invent the concept of an Equal Protection component of the Due Process clause, and apply Equal Protection guarantees to all federal legislation.[5]

Griswold v. Connecticut (1965)

The State of Connecticut had on its books an 1879 statute outlawing the use of contraceptives, but no record exists that it had ever been enforced.  Estelle Griswold, Executive Director of the Planned Parenthood League of Connecticut, and Dr. C. Lee Buxton, a professor at Yale School of Medicine, opened a birth control clinic in New Haven in order to initiate a test case, with the support of the American Civil Liberties Union.  The case initially resulted in a fine of $100 each.  In his majority opinion, Justice Douglas asked indignantly, “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?  The very idea is repulsive to the notions of privacy surrounding the marriage relationship,” as if such action and the institution of marriage had actually been threatened.  Douglas cited “a right of privacy older than the Bill of Rights -- older than our political parties, older than our school system,” describing marriage as “a relationship lying within the zone of privacy created by several fundamental constitutional guarantees.”  Lacking specific “right of privacy” and “zone of privacy” provisions in the Constitution, Douglas asserted that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance,” echoing resorts to “the spirit of the Constitution” in the past.

In his dissent, Justice Potter Stewart noted that “the Court refers to no less than six Amendments to the Constitution:  the First, the Third, the Fourth, the Fifth, the Ninth, and the Fourteenth.  But the Court does not say which of these Amendments, if any, it thinks is infringed by this Connecticut law.”  He concludes, “With all deference, I can find no such general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any case ever before decided by this Court.”  Justice Hugo Black, in a separate dissent, concurred:  “The Court talks about a constitutional ‘right of privacy’ as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the ‘privacy’ of individuals.  But there is not.”  Robert Bork has described the “right of privacy” device as “a loose canon in the law.”[6]

Katzenbach v. Morgan (1966)

According to Article I, Section 2 of the Constitution, states are reserved the right to set voter qualifications.  Following the passage of the Voting Rights Act (1965), a literacy test for voting in New York was challenged.  The Court was in the position of having to choose between support for the Act and a provision of the Constitution.  The majority opinion, written by Justice William J. Brennan, Jr., vested in Congress the power to overrule a clear constitutional provision by citing the general Enforcement Power granted Congress in Section 5 of the Fourteenth Amendment.

United Steelworkers of America , AFL-CIO-CLC v. Weber (1979)

In direct contradiction to Griggs v. Duke Power Co. (1973), the Court found that the Civil Rights Act of 1964 allowed racial preferences.  In Chief Justice Warren Burger’s dissent, he found the majority decision “contrary to the explicit language of the [Civil Rights Act] and arrived at by means wholly incompatible with long-established principles of separation of powers.  Under the guise of statutory ‘construction,’ the Court effectively rewrites Title VII to achieve what it regards as a desirable result.  It ‘amends’ the statute to do precisely what both its sponsors and its opponents agreed the statute was not intended to do.”  Justice William Rehnquist labeled the decision Orwellian, writing that “the Court rejects ‘a literal construction of § 703(a)’ in favor of newly discovered ‘legislative history,’ which leads it to a conclusion directly contrary to that compelled by the ‘uncontradicted legislative history’ unearthed in McDonald and our other prior decisions.

Eisenstadt v. Baird (1972)

Striking down a Massachusetts law that forbade sale of contraceptives to unmarried persons, the Court extended the “right of privacy” beyond the bounds described in Griswold to sexual relationships outside of marriage.  Moreover, put together, they suggest a constitutional right to sexual gratification.

Roe v. Wade (1973)

In 1970, Linda Coffee, a women’s rights advocate, and Sarah Weddington, soon to be elected a Texas state representative, sued in behalf of “Jane Roe” (Norma McCorvey) for the right to obtain a legal abortion.  Reaching far back into ancient history, and leaning heavily on the “right to privacy” created in Griswold, Justice Harry Blackmun’s majority opinion encompassed 51 pages.  In his lone dissent, Justice Rehnquist faulted the majority for violating its own rule of thumb never to “formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied” by a sweeping removal of almost all restrictions imposed on abortion by the states.  He expressed doubt that any “right of privacy” is involved in the case.  Even the liberties guaranteed by the Constitution, he wrote, are “not guaranteed absolutely against deprivation, only against deprivation without due process of law.”  Rehnquist worried out loud that in its handling of the Due Process clause of the Fourteenth Amendment, the Court “will accomplish the seemingly impossible feat of leaving this area of the law more confused than it found it.”

Judge Bork is more blunt.  He writes that “in the entire opinion there is not one line of explanation, not one sentence that qualifies as legal argument.  Nor has the Court in the sixteen years since ever provided the explanation lacking in 1973.”[7]

Bowers v. Hardwick (1986)

A police officer discovered Hardwick engaging in homosexual sodomy in his home, punishable by law in Georgia.  The District Attorney decided not to prosecute, but Hardwick filed suit on the grounds that the law was unconstitutional and “placed him in imminent danger of arrest.”  The Eleventh Circuit Court of Appeals found that “homosexual activity is a private and intimate association that is beyond the reach of state regulation by reason of the Ninth Amendment and the Due Process Clause of the Fourteenth Amendment.”  If upheld, the case would effectively create a “right to homosexuality.”  The Court disagreed with the Eleventh Circuit that “prior cases,” including Skinner, Griswold, and Eisenstadt, “have construed the Constitution to confer a right of privacy that extends to homosexual sodomy.”  On the contrary, the Court asserted that “none of the rights announced in those cases bears any resemblance to the claimed constitutional right of homosexuals to engage in acts of sodomy that is asserted in this case,” and deprecated the attempt to expand the Due Process clauses of the Bill of Rights to include all kinds of consensual behavior.  A dissent by Justice Blackmun is conspicuous for resorting to the concept of a “right to be left alone,” described as “the most comprehensive of rights” by Justice Louis Brandeis in Olmstead v. United States (1928).  The Bowers decision was later overruled by Lawrence v. Texas (2003).

Texas v. Johnson (1989)

Gregory Johnson burned an American flag in downtown Dallas while a group chanted, “America, the red, white, and blue, we spit on you.”  No one was arrested for protesting, but Johnson was charged with Desecration of a Venerated Object under state law.  Five justices held that Johnson’s act was political speech protected by the First Amendment.  Justice Rehnquist’s dissent recalled at length the history of the flag, and cited a litany of federal and state laws prohibiting contemptuous treatment.  “I cannot agree,” he wrote, “that the First Amendment invalidates the Act of Congress, and the laws of 48 of the 50 States, which make criminal the public burning of the flag.  He quotes Chief Justice Warren’s dissent to Street v. New York (1969):  “I believe that the States and the Federal Government do have the power to protect the flag from acts of desecration and disgrace.”  In a separate dissent, Justice John Paul Stevens considered that “it cannot be true that the flag . . . is not itself worthy of protection from unnecessary desecration.

The Infiltration of Foreign Law

On the premise that the Constitution is insufficient to adapt to a complex and changing world, the liberal wing of the Supreme Court has begun to look to foreign and international legal philosophy for guidance and support.  In a dissent to the death penalty case Knight v. Florida (1999), Justice Stephen Breyer wrote, after consulting the laws of many countries, “A growing number of courts outside the United States -- courts that accept or assume the lawfulness of the death penalty -- have held that lengthy delay in administering a lawful death penalty renders ultimate execution inhuman, degrading, or unusually cruel.”  He granted that “Obviously this foreign authority does not bind us.  After all, we are interpreting a ‘Constitution for the United States of America.’”  Breyer continued, however, that “this Court has long considered as relevant and informative the way in which foreign courts have applied standards roughly comparable to our own constitutional standards in roughly comparable circumstances.  In doing so, the Court has found particularly instructive opinions of former Commonwealth nations insofar as those opinions reflect a legal tradition that also underlies our own Eighth Amendment.”  He summarized that “Willingness to consider foreign judicial views in comparable cases is not surprising in a Nation that from its birth has given a ‘decent respect to the opinions of mankind’” (which point is itself unsubstantiated).

In a speech to The American Society of International Law, Justice Ruth Bader Ginsburg said, “The notion that it is improper to look beyond the borders of the United States in grappling with hard questions . . . is in line with the view of the U.S. Constitution as a document essentially frozen in time as of the date of its ratification.  I am not a partisan of that view.  U.S. jurists honor the Framers' intent ‘to create a more perfect Union,’ I believe, if they read the Constitution as belonging to a global 21st century, not as fixed forever by 18th-century understandings.”[8]  (One should note that in the preamble to the Constitution, it is properly “We the people” who act “to create a more perfect Union,” through their elected representatives and the prescribed amendment process.)  Ginsburg applied the 1994 United Nations International Convention on the Elimination of All Forms of Racial Discrimination to her concurrence to the affirmative-action lawsuit Grutter v. Bollinger (2003).

Lawrence v. Texas (2003) was a homosexual conduct case resembling Bowers v. Hardwick.  In his majority opinion, Justice Anthony Kennedy, a swing voter who occupies the seat on the Court originally intended for Robert Bork, made pointed reference to “other authorities pointing in an opposite direction” to those guiding Bowers.  Those of foreign provenance were the 1957 Wolfenden Report advising repeal of homosexual conduct laws in England, codified in 1967; and Dudgeon v. United Kingdom (1981), based on the European Convention on Human Rights.

In Roper v. Simmons (2008), a juvenile death penalty case, Kennedy cited Article 37 of the United Nations Convention on the Rights of the Child, other international conventions, and British law.  He noted “that only seven countries other than the United States have executed juvenile offenders since 1990:  Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of Congo, and China,” and concluded, “It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty . . . .”

Justice Antonin Scalia, in his dissent, provided a comprehensive, point-by-point repudiation of Kennedy’s opinion, especially the infusion of foreign law.  He began by proposing that “the basic premise of the Court’s argument -- that American law should conform to the laws of the rest of the world -- ought to be rejected out of hand.”  To illustrate his point, he enumerated elements of U.S. law, such as trial by jury and search and seizure protection, that he did not think his opponents would be willing to surrender; and relaxed separation of church and state, and greater restrictions on abortion, that they would never be willing to adopt.  “The Court,” he challenged, “should either profess its willingness to reconsider all these matters in light of the views of foreigners, or else it should cease putting forth foreigners’ views as part of the reasoned basis of its decisions.  To invoke alien law when it agrees with one’s own thinking, and ignore it otherwise, is not reasoned decisionmaking, but sophistry.”

“To the contrary,” he wrote, “they are cited to set aside the centuries-old American practice -- a practice still engaged in by a large majority of the relevant States -- of letting a jury of 12 citizens decide whether, in the particular case, youth should be the basis for withholding the death penalty.  What these foreign sources ‘affirm,’ rather than repudiate, is the Justices’ own notion of how the world ought to be, and their diktat that it shall be so henceforth in America.


1.  Robert H. Bork, The Tempting of America:  The Political Seduction of the Law (NY: The Free Press, 1990), p. 22.
2.  John Hart Ely, Democracy and Distrust:  A Theory of Judicial Review (Cambridge, MA: Harvard University Press, 1980), p. 18.
3.  Bork, 64.
4.  Milton Handler, The Supreme Court and the Antitrust Laws:  A Critic’s Viewpoint, Georgia Law Review 339 (Spring 1967).
5.  See Bork, 84,182.
6.  Bork, 97.
7.  Bork, 112.
8.  Ruth Bader Ginsburg, “A Decent Respect to the Opinions of [Human]kind:  The Value of a Comparative Perspective in Constitutional Adjudication,” speech to The American Society of International Law, Washington, D.C., April 1, 2005.

© 2008 Paul A. Hughes
Located at http://www.geocities.com/westloop/godstrombone/constitution-history.pdf

Posted by hughes at 5:23 PM CDT
Updated: Saturday, July 12, 2008 11:06 AM CDT

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