Judge David Hamilton v. Indiana Legislature Ruling
I-05-0813-C, H/K Hinrichs v. Bosma
By Ed Sparks
On May 16, 2006, the Indianapolis Star published a letter to the editor from a Mr. Dan Cook who chided Rep. Brian Bosma for wasting time and money on pursuing the “prayer in the chamber” lawsuit. That same newspaper on March 5, 2006 printed a letter from me in which I introduced the concept that:
“Congress may delegate no power, to any government agency, or court, that it does not possess.”
There are other writings on that subject. Consider just these few:
Chief Justice Marshall wrote in Barron v. Mayor & City Council of Baltimore, 32 U.S. 243 (1883): “Had the framers of these amendments intended them to be limitations on the powers of the state governments, they would have imitated the framers of the original constitution, and have expressed that intention.”
When the Constitution wants something to apply to the state it clearly says so. In Article I, Section 9 the Constitution states that “no bill of Attainder or ex post facto Law shall be passed.” The Fourteenth Amendment was passed on June 13, 1866 and is prohibited by the Constitution from affecting the First Amendment. The Fourteenth Amendment is an ex post facto law. Article I, Section 10, Clause 1 prohibits States from passing any “Bill of Attainder” or “ex post facto law”.
In 1875 the speaker of the House, James G. Blaine proposed an Amendment to the Constitution. Known as the Blaine Amendment it stated: “No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof: …” This Amendment passed the House but not the Senate and was never presented for ratification. The wording of the Blaine Amendment shows that Congress did not consider the First Amendment to be incorporated into the Fourteenth Amendment. Using this reasoning neither was the Fifth Amendment or any of the other Amendments incorporated into the Fourteenth Amendment.
Again, the framers of the Fourteenth Amendment incorporated the Fifth Amendment when they repeated the “due process” clause of that Amendment when they stated no one shall be “compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; …”
Justice Frankfurter stated exactly the same thing in 1947 when he wrote in Adamson v. California, 332, U.S. 46: “The Due Process Clause of the Fourteenth Amendment has an independent potency, precisely as does the Due Process Clause of the Fifth Amendment in relation to the Federal Government.”
Again in Adamson v. California he wrote: “Between the incorporation of the Fourteenth Amendment and the beginning of the present court—a period of 70 years—the scope of that Amendment was passed upon by 43 judges. Only one, an eccentric exception, ever indicated the belief that the Fourteenth Amendment was a short summary of the first eight Amendments.”
In Bartkus v. Illinois, 359 U.S. 121 (1959) Justice Frankfurter wrote: “We have held from the beginning and uniformly that the “due process clause” of the Fourteenth Amendment does not apply to the States any of the provisions of the first eight.”
These few quotations clearly show that the Fourteenth Amendment does not and was not intended to include the first eight Amendments. The Thirteenth Amendment freed the slaves, (Abraham Lincoln did not) and the Fourteenth indicated that all the Bill of Rights applied to those freed slaves.
All lower Courts are set up by Congress under Article I, Section 8, Clause 9 of the Constitution. The Supreme Court is created by the Constitution under Article III. In Article III, Section 2, Clause 2 Congress is given the right to limit all laws and facts that the Supreme Court can hear. Article I, Section 8, Clause 18 (the Necessary and Proper Clause) empowers Congress to organize the supreme judicial branch.
Again, as I stated in my letter of March 5, 2006, “Congress may not delegate any power, to any Government Agency, or Court, that it does not possess”.
Congress is expressly prohibited by the First Amendment from “issuing any law respecting an establishment of religion, or prohibiting the free exercise thereof”. The Courts, created by Congress, are thus prohibited from addressing religious matters in any manner. Therefore, Judge Hamilton has overstepped his delegated power. The decision issued by Judge David Hamilton against the Indiana Legislature is illegal. It is unconstitutional.
The Southern States were outside the Union when Congress forced them to ratify the Fourteenth Amendment as a condition for their readmission. Their ratification was illegal as only States may ratify an Amendment. The Fourteenth Amendment was and is an illegal Amendment.
Representative Bosma is clearly operating within his rights and within clear Constitutional law in appealing the decision of Judge Hamilton.
See a more extensive discussion of this case at my web site, www.edalert.com.
Bibliography:
Barron v. Mayor & City Council of Baltimore, 32 U.S. 243 (1833)
The Blaine Amendment from the J. M. Dawson Institute of Church-State Studies
Adamson v. California, 332 U.S. 46 (1947)
Bartkus, v. Illinois, 359 U.S. 121 (1959)
IP-05-0813-C H/K Hinrichs v. Bosma
A Brief Discussion of: The H/K Hinrichs v. Brian Bosma Judge David Hamilton. By Ed Sparks. (Published elsewhere on this web site.)
