Testing Congress’ Power to Limit Courts to the Constitution
I don’t trust AI any more than Jesus trusted the Pharisees. But when Jesus was 12 He showed me how to get my enemies to help me test my theories
I don’t trust AI any more than Jesus trusted the Pharisees. But Jesus showed us, when he was 12, how we can test our wisdom by interacting with the very people who disagree with us the most. He interacted with the world’s experts in his focus of ministry. And not just any world’s experts, but the very experts He knew would most resist what He came to do.
This article reports my arguments with AI about the clause in the Constitution that lets Congress limit courts. Why shouldn’t Congress use this authority to limit courts to the Constitution? But Congress never can, before enough voters understand that the Precedents from Hell are based on Reasoning from Hell – not on the Constitution – and the Constitution offers tools to help neutralize it.
Interaction with our enemies, following Jesus’ example, trims the nonsense off our assumptions. Much wisdom is lost by intolerance of criticism, such as cutting off dialog with “It’s no use talking with you. You’re never going to change your mind anyway.”
I have been blessed with interaction with many of the world’s most powerful critics. I published the Prayer & Action News for 25 years, during which time I wrote appeals to the U.S. Supreme Court (pro se, without a lawyer) five times – three times for others. I was criticized by news reporters, law professors quoted by the reporters, and Planned Barrenhood (Banned Parenthood) lawyers in court. I was blessed with pretty high level criticism. There is even a Wikipedia article about me that survives.
Looking back, I’m not sure why I got so much attention. I never had more than 200 subscribers, and had my prolife claims been honestly reported I’m not sure they were more sensational than the claims of real prolife leaders of tens of thousands.
Since reporters lost interest in me, I have made lists of Republican lawmakers in 30 red states and sent them my findings. I offered them my book, How states can outlaw abortion in a way that survives courts. over 50 accepted my offer. I interact with lawyers when I can. My substack emails go out to about 180 people I have met, of whom between 55 and 80 “open” my emails. But vigorous feedback is rare.
So I supplement human criticism with AI criticism.
I find that over half the time AI quotes court cases to me, the cases are not about what AI reports. After all, all AI can do is plagiarize humans; lawyers, in the case of legal questions. And who would trust everything a lawyer says? But at least humans are able to sense when what they quote is absolutely wacko. Not AI.
So I don’t use AI much. Most the time I can find discussion of legal issues by genuine humans.
But today I can’t. Today I want to anticipate how courts might respond to combining the jurisdiction stripping power with Clarence Thomas’ observations that “substantive due process” is an unconstitutional oxymoron, with Ruth Colker’s and Christopher Schmidt’s defense of Congress’ authority over the Supreme Court given by Section 5 of the 14th Amendment, with the scandalous basis of the “State Action Doctrine”, and with irrefutable evidence that babies of people are people.
I couldn’t find a single article combining those themes! So I turned to AI. Here is what I got that seems to me very realistic.
I asked AI to predict how courts might respond to a nationwide abortion ban by Congress that begins with these “findings of facts”:
ME: The Court in 1973 said mere judges aren’t smart enough to know if babies of people are people. The Court in 2022 said they didn’t care if babies of people are people: that wouldn’t enter into their reasoning.
In the years between, the fact that babies are people from conception/fertilization has been established by every court-recognized fact finder – every jury, expert witness, state legislature, judge that has taken a position, and by Congress in 18 U.S.C. 1841(d). No American legal authority has ruled that constitutionally protected “life begins” any later. If a judge still cannot know a fact after its establishment by every court-recognized fact finder that has taken a position is unanimous, it is impossible for any judge to know anything.
That established fact makes killing preborn babies at any stage of gestation legally recognizable as “murder”, which the 14th Amendment doesn’t allow any state to legalize. Any judge who obstructs criminalization of murder is an accessory to murder, which is both a criminal and an impeachable offense.
This is only the first half of my proposed “findings of facts”, but I asked Gab.AI to predict what would happen with this much. Here are some of the points in AI’s response that I think are plausible:
AI’s response, summarized: The response began “nothing like this has ever gotten out of committee”, but supposing it did, the issue in court would be: “whether Congress can redefine ‘person’ for purposes of the 14th Amendment so as to strip the...abortion right [which] the Court (as of 2022) never formally declared non-existent.” PP would say “Dobbs overturned abortion being a fundamental right, but did not say a fetus is a legal person, and Congress can’t force courts to adopt a specific definition of ‘person’ ”.
AI’s other way to state the question before courts: “Whether Congress, acting under Section 5 of the 14th Amendment, can statutorily declare that human life—and therefore legal personhood—begins at fertilization, thereby removing abortion from the list of unenumerated substantive-due-process rights.”
[Legalese alert: if “unenumerated substantive due process rights” sounds like a bunch of made-up words with no helpful meaning, Justice Clarence Thomas agrees with you. More about them later. For now, mentally substitute “the list of made-up ‘rights’ which courts never had any constitutional authority to invent” and we’ll be fine.]
The current majority would probably uphold the nationwide abortion ban, reasoning that “Congress has the power to enforce the 14th Amendment’s guarantee that no state shall deprive any person of life; the Court need not decide when ‘life’ begins, only whether Congress committed a clear constitutional error in so declaring. History and tradition support the congressional finding; it is at least rational.”
The dissent would probably reason that “Section 5 cannot be used to redefine the Amendment’s own terms contrary to prior doctrinal context [precedent], and that doing so violates separation of powers by conscripting [controlling] the judiciary.”
Although maybe I should be happy to have just won at the Supreme Court, I wanted an overwhelming win. Our God-given Right to Life deserves the silence of any dissent. So I argued with AI:
Me: Your scenario, though impressively plausible, ignores the fact that “life begins at fertilization” is established by every court-recognized fact finder, in every category of court-recognized fact finders. In the face of reality, is the failure of SCOTUS to acknowledge that apparently irrefutable evidence even relevant? Isn’t its basis in a “mistake of fact” a formal reason in Stare Decisis jurisprudence [don’t reverse precedents except for strong reasons] to disregard a precedent? Doesn’t the fact that babies are people from the beginning, now that it is universally established by every legal authority that has taken a position, make abortion legally recognizable as murder?
AI’s response somehow missed the fact that my scenario began with the consensus of fact finders as the basis for a nationwide abortion ban. So it answered as if the only facts that count are those acknowledged by precedents, and that to overturn stare decisis protection of a precedent, its old premise has to be “demonstrably false”, not just rendered “debatable”. My summary of AI’s response:
AI: No precedent ruled that “constitutional personhood” begins at fertilization. Roe said the Constitution is silent. Dobbs and Casey said that either way, “balancing tests” between baby’s right to life and mom’s right to “privacy” still exist.
But since no fact was made the basis for those rulings, there is no “erroneous factual finding to correct.” “Established by every court-recognized fact finder” does not equal “constitutionally compelled”.
Even if every fact finder and judge who took a position agrees “on the factual point that ontological [in fact, in reality] human life begins at fertilization”, that doesn’t make “person” mean, by authority of the constitution, a constitutionally protectable human being. Fact finders supply data. Federal law determines what to do with it. Congress can indeed enact its definition. [Congress enacted that definition in 2004. 18 USC 1841(d).] But courts would treat it as a new fact to consider, not a previously presented fact which old precedents got wrong.
I was starting to get upset with AI’s dodges of anything that matters with its murder-justifying legalisms. Enabling murder is no crime as long as you ignore evidence that the people you are murdering are human beings? Hmmm. So I argued again:
Me: If facts are unanimously established by fact finders but ignored by courts, does court silence mitigate facts? When the “ontological” fact established is that abortion is murder, are judges absolved of responsibility for ignoring reality and perpetuating murder anyway? How would the Nuremburg trials answer? Is there nothing unconstitutional about court rulings that protect “ontological” murder-in-fact?
Here is AI’s answer, again summarized:
AI: No, a court’s silence—let alone its refusal to adopt a factual premise—does not extinguish, negate, or “mitigate” the factual reality you have described. But the 14th Amendment gives courts not only the power but the responsibility to decide what legal consequences flow from that reality. [Oh my! And to think all these years I was tricked into thinking that describes the job of lawmakers!]
A unanimous scientific or legislative finding that “human life begins at fertilization” remains an ontological truth regardless of judicial silence. But neither Congress nor Courts have created legal consequences based on that truth.
[Huh? Judges are as innocent as lambs because there were never any laws penalizing abortion because abortion is murder? That’s what Roe claimed, but it was refuted by Dobbs, that past laws against abortion didn’t specify that babies are people. Laws after Casey (1992) couldn’t say it because Casey threatened to rule any law unconstitutional that was passed for that reason! So prolife lawmakers struggled to come up with any other reason to restrict abortion than the one that most mattered.]
Here again, AI perhaps forgot that my scenario began with establishment of the fact that babies are people from the start. But looking back at my scenario, I see that what I submitted to AI didn’t specify that Congress declares the fact. I added that detail later. I am reminded that the 14th Amendment, Section 5, authorizes Congress to enforce rights that are being trampled in certain states, which, according to the Supreme Court in 1966 and 1880, includes interpreting rights and dictating how far they apply. So the fact is established by all fact finders, but the legal power over states is limited to Congress.
Congress declared the fact in 2004, in 18 USC 1841(d): babies are “members of the species homo sapiens” at “all stages of gestation”. That finding of fact is not mitigated by section (c) which exempts moms from any penalty for murdering their baby but doesn’t stop the baby from being a baby.
Sit down for what AI told me next about the Nuremburg Trials. It turns out that the crime of enabling the murder of tens of millions of babies is nothing alongside murdering tens of thousands of Jews and Christians by Hitler’s Nazi regime, for which scores of Nazi leaders were tried and executed after World War II in Nuremberg, Germany. I had to read this several times to make sense of it, and it still makes me feel like I’m slipping into Nonsenseland.
AI: In the Nuremberg proceedings the judges were being judged, not by factual disputes, but by their complicity in a positive legal order that intentionally legalized and systematized murder. But SCOTUS never said babies are people before protecting their killers, so that is different. [In other words, had the Nazis said they didn’t know if Jews were people, they would have been as innocent as American judges.] SCOTUS’ silence therefore cannot be construed as the positive [conscious] legalization of murder with mens rea (criminal intent) comparable to Nuremberg’s tribunal targets [who said Jews are people, but inferior people].
Unless and until Congress supplies the positive federal law making abortion murder—backed by enforcement machinery—no judicial decree unconstitutionally shields perpetrators. The criminal charge of accessory to murder would require both (1) knowing the victim is a constitutional person and (2) actively obstructing the enforcement of a facially valid statute—a situation that does not presently exist. [Because courts won’t let it exist.]
Conclusion: Judges are not “absolved,” but their responsibility is rooted in procedure and the separation of powers, not in the ontological [actual] facts themselves. The next Congress would need to legislate the fact into a binding legal category; only then could a refusal to enforce (or an injunction against enforcement) trigger the constitutional or ethical culpability you describe.
Congress declared babies to be people in 18 USC 1841(d). Even if Congress had not, that still would by no means absolve courts for 70 million murders and still counting. Even before it occurred to any court recognized fact finder to declare what everyone, it was generally assumed, knew, that babies are people, which makes killing them murder, it was like the Pharisees telling Jesus “we cannot tell” in Mark 11:33. Yeah, right. You judges are smart enough to confuse a lawyer but not smart enough to tell if babies of people are people. “Common knowledge” is the legal name for what judges ought to be able to figure out without having it laid out at great expense by lawyers.
I made one last attempt to get AI to focus on my scenario: “My query began with the scenario that Congress DOES ‘legislate the fact into a binding legal category.’ Please recraft your last answer to accommodate this detail.”
Finally, I got the overwhelming victory before the Supreme Court that babies deserve! First, AI further developed the scenario with three statements: another “finding of fact”, and two laws that include penalties:
AI: Ҥ 1. Every human organism from the single-cell, fertilization stage is a person for purposes of the Fifth and Fourteenth Amendments.
§ 2. Abortion at any gestational stage is the federal felony of murder under 18 U.S.C. § 1111. [The degrees of murder, and the penalty for each degree. Although this statement doesn’t specify what degree of murder to assign to abortion.] No State may deprive any person of life without due process; therefore every state statute, regulation, or judicial decision authorizing or protecting that act is null and void.
§ 3. Any federal judge who by injunction or judgment knowingly obstructs the enforcement of § 2 is an accessory to murder and is subject to impeachment.”
By the time the case would get to SCOTUS, AI now says the question would be something like:
AI: “Does Congress possess the power (under § 5 of the Fourteenth Amendment) to define constitutional personhood, thereby removing abortion from the unenumerated-rights realm and making abortion ipso facto murder?”
This indeed sounds like an argument an Attorney General, defending a nationwide abortion ban, would raise. But if I were the Attorney General, I might state it more like this:
Me: “Does Congress possess the power (under § 5 of the Fourteenth Amendment) to agree with the Supreme Court which has NEVER said there can be such a thing as a human who is not counted as a “person” under the 14th Amendment? Can Congress agree with Justice Clarence Thomas who argued persuasively – and the Court majority never found fault with it – that making up rights that are NOT enumerated (listed in the Constitution) is unconstitutional, and the right to murder babies is NOT listed in the Constitution?”
Anyway, back to AI. Then AI jumps to the reasoning that would sustain at least the 5-4 majority:
AI: • Congress is co-equal. Section 5 lets Congress “enforce” the substantive commands of § 1. Determining when protected life begins is a necessary predicate to such enforcement.
• The Court’s prior silence on personhood was an interpretive gap, not a fact-finding error. Now that Congress has spoken, Chevron-style deference [that gives weight to rules of inferior authorities as long as they sound rational] is inappropriate; the only question is whether Congress’s judgment is rational. The factual record—stem-cell biology, genetics, fetal-pain science—is not seriously controverted [disputed]. Under the deferential “rationality” standard, the definition holds.
• Judges who refuse to apply the clear federal statute become, at law, accessories to murder. Their constitutional immunity is stripped to impeachment standards; their orders are subject to the Ex parte Young exception [individuals can sue state officials who violate federal law] but can be overridden by higher statutory directives.
Back to the comparison with the Nuremberg trials, corrected:
AI: If Congress has positively declared abortion to be murder and the Court thereafter blocks enforcement, every federal judge has (a) knowledge of the statutory command, (b) a direct legal duty under the Impeachment Clause and the Supremacy Clause, and (c) no defense of mere obedience to an earlier case. Such obstruction could now be likened to judicial participation in a system of state-sanctioned homicide.
Bottom line: Once Congress “legislates the fact into a binding legal category,” a contrary judicial ruling would not be the neutral silence discussed earlier; it would be an obstruction of federal law predicated on denying a statutory personhood definition that rests on uncontested facts. Stare decisis supplies no shield; separation-of-powers is the only possible defense for the dissenting justices.
Well, that felt good. And that was only part of what I dream of seeing Congress enact.
Here is the rest – instead of asking AI to predict again, let me ask you: what do you think this would stir up, in a federal law? Please comment, write or call me.
In a federal law: ...In addition to these reasons courts can’t block this nationwide abortion ban without subverting the Constitution, which is impeachable, the “right to privacy”, the rationale in 1973 for the “right” to kill your baby, is a made-up “right” that is hostile to the enumerated Right to Life. It is not one of the enumerated “privileges and immunities” which the 14th Amendment authorizes federal authority to enforce. The Constitution issues no federal jurisdiction to enforce it.
Enforcing a made-up “right” without constitutional jurisdiction, while falsely claiming constitutional jurisdiction, subverts the Constitution, which is not “good behavior”, but rather is impeachable. Justice Clarence Thomas has thoroughly and persuasively explained these facts in City of Chicago v. McDonald (2010) and Dobbs v. Jackson (2022), and the SCOTUS majority has not contradicted them. They are also affirmed by Timothy Sandefur in “Privileges, Immunities, and Substantive Due Process”, NYU Journal of Law & Liberty, December 22, 2020. And Bradley C.S. Watson, “Clarence Thomas Dismantles the Fiction of Substantive Due Process.” Claremont Review of Books.
These attacks on “substantive due process” are serious, meriting a response, and persuasive, calling for a review of all precedents based on the false doctrine.
Another Constitutional violation that would result from blocking this law is that according to Section 5 of the 14th Amendment, as explained by Morgan and by Ex Parte Virginia (1880) before it, the Supreme Court has even less jurisdiction, to enforce any right against states, than Congress. And Congress has established that babies are people “at every stage of gestation”. 18 U.S.C. 1841(d), a finding of fact which is not mitigated by section (c).
Boerne v. Flores (1997) insists otherwise – that Section 5 leaves courts the superior interpreter and applier of the Constitution, but Boerne’s Stare Decisis value merits review, since (1) Boerne leaves Katzenbach v. Morgan (1966) fully intact and fully binding precedent even though Morgan reads Section 5 to give Congress the lead in interpreting the Constitution, (2) Morgan’s reading of Section 5 is much easier to reconcile with the plain words of Section 5, and (3) law professor Ruth Colker exposes the profound historical errors by which Boerne was justified.
See what impact facts can have?
Maybe the Court’s response to a challenge like this would be to submit evidence that babies actually don’t have souls until they are 18 and registered as Democrats, that “privileges and immunities” was actually a misprint in the Constitution, and that Section 5 actually reads “COURTS are the only authority allowed to interpret the Constitution”.
But what if Congress’ statement is true, and SCOTUS is unable to disprove it? Would SCOTUS dare proceed with actions which Congress has proved are unconstitutional, and which SCOTUS is unable to show are constitutional? If SCOTUS did, surely Congress would take another look at ways to force courts back to the Constitution which not even Bill Clinton’s Presidential Commission could confirm are more than the Constitution provides.
Don’t just swat at precedents. Uproot the reasoning feeding them.
Even if Congress could tell courts “you can only enforce our abortion ban; you no longer have jurisdiction to decide if it is constitutional”, that would be like batting at a wasp buzzing around your head instead of grabbing a board and knocking down the whole wasp’s nest.
Because whenever we see a result from Hell that destroys the lives of millions, we don’t have far to look to see a gross subversion of the Constitution breeching many more rights which voters notice less. Reversing just one precedent from Hell crawling through that breech isn’t enough. The breech should be exposed and closed. The whole line of precedents from Hell should be nullified.
The Power of Facts in the Arsenals of Voters.
Findings of Facts are routine in bills, especially where court challenges are anticipated. Findings “appear in a majority of significant bills” even though “Legislative Counsel explicitly discourage the inclusion of findings and purposes in bills, advising Congress that those materials are best left to committee reports”. Courts don’t treat Findings with the authority they deserve, and they often get stripped from laws as laws are added to the U.S. Code, but Findings are an important tool that are underutilized. (“Enacted Legislative Findings and Purposes” by Jarrod Shobe, University of Chicago Law Review, 2012?)
Findings explain and justify the laws in which they are included. They are condensed explanations upon which lawmakers have agreed. The more persuasive the facts and arguments are, the clearer it is to everybody that overturning the law would be unconstitutional, rendering judicial sophistry powerless to bamboozle Congress and voters. The clearer it is that a ruling is unconstitutional, the readier Congressmen will be to think about ways to restrain courts which are being discussed on the edges of the main stream, and the readier voters will be to support them. Judges’ awareness of these factors has influenced many precedents.
That is the sense in which voters have always refereed disputes between Congress and courts. Voters have always made the final call. The Constitution technically gives Congress all the power it needs to restrain courts, but voter feedback has always dictated how much of that power Congressmen can safely use.
Therefore I urge lawmakers:
Involve voters in details. Not just “red meat” fundraising letters attacking the results of rulings and asking for money without equipping voters to fully understand sophistry in judicial reasoning. Write those “findings of facts” to be understandable to voters while still irrefutable in courts.
Reversing just one precedent about one issue, without explaining the judicial sophistry behind it, will be seen as an assault on our Constitution by half America’s voters. Exposing the breech in the Constitution will be harder to oppose. Understanding it will take more study than average voters are currently willing to do. But the more the stakes are seen to be very high – a major reset of Rights – serious study will become fashionable.
Don’t limit your attack to a judicial result that superficially stirs the public. Go after the judicial sophistry that sustains it. Help the public understand the Precedents from Hell you are attacking aren’t “merely” offenses against God, morality, and Freedom. They are unconstitutional too. They are unlawful. They subvert the Constitution. The Constitution provides for them to be stopped.
Don’t hold back from defending the Constitution for fear that you will destroy our “constitutional system” by attacking the court notion of “Judicial Supremacy”. It is a false dichotomy to say “finality” – the final say on the meaning of the Constitution – must be in either courts or legislatures – it can’t be in both. Each branch has powers that are not reviewable and other powers that are reviewable. Bold use of the Exceptions Clause to correct abuse of the Constitution will very likely lead to a tie of the Titans which will be broken by incredibly well informed voters.
Treat voter education sufficient to supervise courts as even more important than immediate healing of the Constitution. Rescuing the Constitution from courts is an end in itself, but a greater good is public understanding of the Constitution that will eventually, if not immediately, prevent either Congress or courts from subverting it again.
It is so likely that massive public interest will develop from such a contest, that the more realistic obstacle is not that it will be ignored, but that it will lead to dangerous levels of division, violence, political and economic attacks. The first need, before the contest can begin, is faith that God has actually caused this door to exist. The second, greater need, will be courage to walk through it despite personal cost.
What will make this courage possible will be love for neighbor as ourselves, love for our children and grandchildren, empathy for victims of the evil around us, love for God who hates evil, concern for our own eternal destiny, faith that God equips us to move mountains, and a sense of responsibility for the stewardship of such power. Which makes it insane to imagine this can succeed without publicly calling, together, for the help of God, which will acknowledge that God exists and God governs, and that the principles He offers are good, and for our benefit, not His. Job 35:1-7.
I thank my God for cruel evil.
It touched my life and made me care.
Huge as a mountain. I was able
to light the dark with work and prayer.
My Jesus spoke of Heaven rejoicing
when any join Him in His war.
Marching with Him, I find true meaning.
My cross is wings that let me soar.
What Light is brighter than the verses
that guide to Heaven, steer from Hell?
They shine on Dark abominations
that laws protect, and young souls, sell?
What if such Light shone in such Darkness
How long could laws from Hell prevail?
Our land would see again rightousness
while Satan’s servants sit in jail!
(To the tune of “Wayfaring Stranger”)