Andrew E. Carlan, Esq.

Thomas and Scalia as often as the rest of that bunch keep alive the Supreme Court’s "domestic relations exception" (see explanation at bottom) on no air. More often than any other branch of law, divorce and custody test ultimate constitutional realities. Individual freedom pales before the birthright of the family to be free from meddling by the state. No people ever retained their liberties whose legal system didn’t rest on family rights.

The Constitution and the Bill of Rights don’t mention family. Why should they? The Founding Fathers least expected (1) the federal government to usurp this most local power from the states and (2) that Chief Justice John Marshall would make a nullity of the Constitution whole. Chief Justice Charles Evans Hughes wrote a century later "the Constitution is what the Supreme Court says it is." That may be smart but it lacks both virtue and common sense. Any child knows if a bully ignores the agreed rules of a game he is inventing new games as the plays move on.

There is no way to tell beforehand what you can and cannot do to win. Now you can’t play the game without reading the bully’s mind. Feminist law has put the crown on what late 19^th century nitwit law professors called positive law (which is really negative). And both wings of the court are equally spineless toward the feminists.

Thomas said his life has been transformed by the addition three years ago of a great-nephew, Mark, to his household. "My wife and I have devoted our lives to raising this child," Thomas has said of the 9-year-old grandson of his only sister.

Our lives have been transformed, too. We watch our children seized and carted off. We can’t see them. Thomas shows no concern for us. Sorry, I am dry-eyed.

Thomas must be blind, deaf and dumb. He weeps over the profound experience fatherhood has for him. But he still can’t see through the cloud of the "domestic relations exception" the mashing of basic constitutional rights by all the courts below. Since when were "due process" and "equal protection" unique to family law?

The Supreme Court has never barred a whole class of citizens other than slaves in the infamous Dred Scott Case from petitioning the federal courts on infringements of their civil rights. 

The Domestic Relations Exception has slammed the doors of the Supreme Court against fathers in particular, and men in general, and therefore has rendered us second-class citizens. 

In the past twenty years, Congress has passed all kinds of quasi-criminal regulations on divorce and custody, most of which have stripped fathers of fundamental Constitutional rights to "due process" and "equal protection of the laws" guaranteed under the 5th and 14th Amendments. 

You might want to read The Federalization' of Child Support Issues by Joel Brandes, Esq. He was the annotator in Westlaw's annotated NY's Domestic Relations Law. My ex-wife hired him to reverse my appeal victory before I yet had entered this hallowed profession.

Fathers are presumed under these regulations to be "deadbeats." To punish such fathers, Brandes notes Congress created a locator databank in Health and Human Services and has paid states to go after fathers. In the vast majority of cases, fathers had paid their support. The states were sloppy record-keepers.

If you as a layman see a contradiction here, that is not surprising. It easier for those not drilled in a lifetime of the law to see its evasions and absurdities.

Whatever Congress may enact (Article I), the President may put into operation (Article II) and the Supreme Court may adjudicate. (Article III. The articles are tied together, especially since they all rely on the "necessary and power" clause. Only Article I troubles to enumerate Federal powers. Articles II and III just indicate where executive and judicial power reside.

Stephen Baskerville, a Howard University professor and long-time voice in the Fathers’ Rights movement, wrote in his Politics of Fatherhood, excerpted in the The American Political Science Ass’n Online:

Thus while family courts sit lowest in the judicial hierarchy, paradoxically they are regarded as the most powerful. "The family court is the most powerful branch of the judiciary," according to Robert Page, presiding judge of the family part of the Superior Court of New Jersey. By their own assessment, "The power of family court judges is almost unlimited" (Page 1993, 11).

Perhaps most startling is that by some accounts they claim to be exempt from the U.S. Constitution. Family courts describe themselves as courts of "equity" or "chancery" rather than "law," implying they are not necessarily bound by due process, and the rules of evidence are not as stringent as in criminal courts. As one father reports being told by the chief investigator for the administrator of the courts in New Jersey, investigating a complaint in 1998: "The provisions of the U.S. Constitution do not apply in domestic relations cases since they are determined in a court of equity rather than court of law." A connected rule, known as the "domestic relations exception," prevents federal courts exercising constitutional review over family law cases.

I don’t see the problem as legal. I see it as comical. If I were in Baskerville’s position, I’d needle Thomas until he fumed. Theoretically, I support most of Thomas’ positions. I should be his natural supporter. But he doesn’t give a damn about his court’s laziness in the face of my loss of citizenship rights, so why should I care about him?

In Barber v. Barber , 323 US 77,65 S. Ct. 137 (1944) the Supreme Court actually was stupid enough to spill its scrambled brains all over the page. The majority wrote "A domestic relations exception to federal diversity jurisdiction exists as a matter of statutory construction." Pp. 3-11.

The same logic exists in the statement "I can’t stop hanging myself because I decided to commit suicide." Remember Chief Justice Hughes’ quote above? Worse yet, there is no common denominator that fits all the cases the Supreme Court simply refuses to take, much less read and reject, based on the drunk it drags out called the "domestic relations exception."

The Court's power itself rests on circular reasoning. It may be unfortunate. The distinguished historian Paul Johnson points out in his History of the American People (see book content at Amazon and commentary at First Things) that one of the biggest mistakes of the Founding Fathers results from their hurry to create the judiciary. Constitution, Article III. They provided only the barest sketch because they wrongly thought the flashpoint of issues would be Congress and the Presidency. Boy, thanks to John Marshall, were they wrong! (Johnson, p. 202)

Well, where does the Court's power originate? From the Court itself. In Marbury v. Madison (1803), John Marshall, who would in his 35 year rule transform the Court into "primus inter pares," first among equals or as  George Orwell would put in the pig's mouth in Animal Farm "Everyone is equal but some are more equal than others."He would create "judicial review" out of the vapors ." Neither the phrase nor the idea appear in the Constitution. In effect Marshall, crippling logic, said "who else can exercise "judicial review" but the judiciary?"

Wait a minute! Why does "judicial review" have to be the monopoly of an one branch or of the federal government exclusively? Britain, Switzerland and many of the real democracies realize that such review cannot be impartial. It is not judicial, but political. Therefore the proper means of resolving differences in a republic, essentially a democratic republic, is discussion, debate and compromise or consensus. Politicians are much better at this than a self-ordained priesthood of lawyers made judges.

Look at the arrogance it creates. Is this what Americans picture as their idea of a republic, especially a democratic republic? This is Justice Sandra Day O'Connor delivering from on high the opinion of the Supreme Beings in Planned Parenthood v. Casey (1992). No Pope in history ever claimed such infallibility.

Like the character of an individual, the legitimacy of the Court must be earned over time. So, indeed, must be the character of a nation of people who aspire to live according to the rule of law. Their belief in themselves as such a people is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals. If the Court’s legitimacy should be undermined, then, so would the country be in its very ability to see itself through its constitutional ideals.

On the other hand, they are piles of spooky ideas that couldn’t be fumigated out of the Constitution that these judges discover hiding in their attics. The whole thing is a game, which is why fathers waste their time analyzing laws. Lawyers don’t analyze laws. They find out which direction the judge totters in and make a case accordingly. Lawyers and especially judges are very sick people. That’s why they uniformly favor gun control. They might hurt themselves. That’s not just my view. A former Chief Justice expressed it first.

"... ours is a sick profession marked by incompetence, lack of training, misconduct and bad manners. Ineptness, bungling, malpractice, and bad ethics can be observed in court houses all over this country every day ... these incompetents have a seeming unawareness of the fundamental ethics of the profession. ... the harsh truth is that ... we may well be on our way to a society, overrun by hordes of lawyers, hungry as locusts, and brigades of judges in numbers never before contemplated." -- Chief Justice of the United States Warren Burger quoted in Time, 27 June 1977

Footnote on Domestic Relations Exception:
“Domestic relations” exception, which is not in the Constitution, and incorporates divorce, alimony and child custody. 
E.g. Akenbrandt case of child molestation, where Justice White stated the exception does exist, but this case did not fall under it because the exception does not apply to torts. 
1. Congress has not amended §1332 to include divorces and other domestic cases, following Barber v Barber (1859) (Fed courts have no jurisdiction over suits for divorce or allowances through alimony).
 Hershkoff calls this “Acquiescence through Silence.” Utilizing Doctrine of Abstention, where court decides not to exercise its power 

2. Arguments for Exception:
a. States better equipped to handle such cases--have better relationships with applicable agencies, more expertise, more resources, know state law better, state law judges closer to electorate. Evades question. Can state courts violate Federal constitutional protections in family matters as in others. In fact, more so. This whole commentary shows that.

3. Counter-Arguments
a. Above arguments are circular. The state resources are better only because society has decided to put these resources there. Bull

b. Fed courts do not deem such issues important. This trivilization of family cases for wives and children . Women and Children??!! That would be little arguing plantation owners needed the Thirteen Amendment to protect them from the slaves. Incredible how pointed-headed intellectuals turn reality on its head. This footnote was taken from Findlaw, which is one of the biggest sites Lexis, one of the two monopoly legal research mega-corporations, maintains on the Internet. BTW, the first and second sentences are correct.