Bryan Fischer
Constitution: judge has no jurisdiction over Kim Davis
By Bryan Fischer
September 12, 2015

Follow me on Twitter: @BryanJFischer, on Facebook at "Focal Point"

Host of "Focal Point" on AFR Talk, 1-3pm CT, M-F

To paraphrase RFK, Jr., I see things as they should be, and say why not?

A little noticed facet of the debate over the incarceration of Kim Davis is that the Constitution itself forbids the federal judiciary from interfering with her duties in any way.

The Constitution itself builds a fence around the Supreme Court and the federal judiciary. It establishes a clear perimeter around its authority. Anything outside the fence built by the Framers in the Constitution is off-limits to the Court. If it wanders outside of its prescribed space, it is trespassing on property that is not its own.

We have invisible fences for dogs. If they hit the fence line, a shock collar stops them in their tracks. Now we have no shock collar to wrap around the necks of the Supreme Court, as helpful as that might be, so the people themselves have to be that shock collar, to alert the Court that it is outside the property line and needs to get back on its own lawn.

I'm not even talking here about the 10th Amendment but about Article III of the Founders' Constitution, which tells the Supreme Court what it can and cannot do. The Supreme Court is only authorized to assume jurisdiction over areas assigned to it in Article III. If the Court is not authorized to rule on an issue listed in Article III, it has no legal, moral, ethical or constitutional right to intervene.

What Article III makes clear is that, when it comes to issues within the individual states that make up the United States, its jurisdiction is severely restricted. In fact, it only has authority to deal with disputes between two states or between the citizens of two different states.

Other than that, it is not authorized to intervene in the internal matters of any state. Managing affairs within an individual state, including on the issue of marriage and marriage licenses, is a matter for state legislatures and state courts. Such matters are quite literally none of the Federal Judiciary's business, from Supreme Court' on down.

Here is how Article III Section 2 reads (emphasis mine throughout):

The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; – to all cases affecting ambassadors, other public ministers and consuls; – to all cases of admiralty and maritime jurisdiction; – to controversies to which the United States shall be a party; – to controversies between two or more states; – [between a state and citizens of another state]*; – between citizens of different states; – between citizens of the same state claiming lands under grants of different states, [and between a state, or the citizens thereof, and foreign states, citizens or subjects.]*

* Changed by the Eleventh Amendment

As Alexander Hamilton said in Federalist 80, "This constitutes the entire mass of the judicial authority of the Union." In other words, if jurisdiction is not specifically granted to the federal judiciary in Article III, the federal judiciary doesn't have it. Period.

So when the legal controversy has to do with foreign diplomats or nations, or incidents on the high seas, the Supreme Court is properly the ultimate arbiter. When the Court rules on such cases, it is discharging a constitutionally assigned responsibility with constitutionally assigned authority.

What the careful reader will observe is that the federal judiciary is not authorized in any way to insert itself into matters within the boundaries of the individual states. The only controversies over which it has authority are disputes between two or more states, or between citizens of different states.

There can be, for instance, boundary disputes between two states. Currently Georgia and Tennessee are locked in a controversy over which state has jurisdiction over a portion of the Tennessee River. It's not an inconsequential controversy, since that portion of the river, if it belongs to Georgia, would be a source of drinking water for Atlanta. It is entirely proper for the Supreme Court to be the final arbiter in that dispute.

But the Constitution gives no authority to the Supreme Court to tell the folks inside the state of Georgia or Tennessee, either one, how to conduct their affairs. None. That's a matter for the states themselves to settle.

And if a citizen of one state has a legal beef with a citizen of another state, again that's a matter for the Supreme Court. This, of course, is designed to preserve impartiality, since state courts might be inclined to show favoritism to their own state or their own citizens.

The only exception granted to the Supreme Court to settle a dispute between two citizens of the same state is in matters of disputes over land grants.

Said Hamilton,


It's worthy of note that, while I have bolded some words, the emphasis in this paragraph is entirely from Hamilton himself. He put this section in all caps. He wanted to be absolutely certain that the citizenry knew that the Constitution they were about to approve was not going to allow judicial meddling by the central government in the internal affairs of the various states.

Thus when homosexual citizens of Kentucky marched into Kim Davis' office demanding wedding licenses, that controversy, because it was between citizens of the same state, was literally none of the federal government's business.

And, according to the 11th Amendment, no citizen is allowed to travel from one state to another, challenge its marriage law, and expect the federal judiciary to take up the challenge.

Says the 11th Amendment,

"The judicial power or the United States shall not be construed to extend to any suit in law...commenced...against one of the United States by citizens of another state..."

David Bunning, a federal judge, was not authorized in any way, shape, or form by the Constitution to exercise any judicial intervention whatsoever. He should have thrown the case out of his court the moment it was presented. He violated his oath of office the moment he accepted this case.

Judge Bunning is, therefore, the one who violated the Constitution and his oath of office, not Kim Davis. The federal judge is the one who failed to uphold the rule of law, not the county clerk.

How do we know? The Constitution says so.

Bottom line: it's time to get federal judges back on the porch where they belong.

(Unless otherwise noted, the opinions expressed are the author's and do not necessarily reflect the views of the American Family Association or American Family Radio.)

© Bryan Fischer


The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
(See RenewAmerica's publishing standards.)


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