Is America a nation under the rule of law, or of men?

This Monday, November 29th, the Supreme Court is expected to decide whether or not it will accept the Petition on the issue of President Obama’s status as a citizen and to have validity qualified as a President of the US. (Kerchner, No. 10-446)i. The Petitioners make several arguments equally applicable to HOA principalities with respect to the failure of the courts to protect the citizens of this country under its constitutional duties and obligations. HOAs are allowed to supersede and circumvent the supreme law of the land and are treated as principalities independent of and not subject to the Constitution.

Is the Constitution a meaningful document, or just a piece of paper that only serves as a basis to debate exceptions to its application? In other commentaries, I have written that America is no longer under the rule of law, but of men, and those living in HOAs have suffered as a result of the deterioration of this once honorable and noble standard and ideal. The application of the Constitution, as required of all public governmental entities, to de facto private governments is not an issue to state legislatures and those public interest organizations. Such actions relegate the Constitution to a meaningless piece of paper, and men now rule the country following their beliefs, principles and self-interests as evident in many third-world countries.

In Twin Rivers, the NJ Supreme Court rejected constitutional protections of free speech for homeowners in HOAs in favor of the “business judgment rule.” In Arizona, the appellate court found no problem in preferring the corrupt HOA due process “hearings” over independent tribunals by an administrative hearings agency. In contrast, the Supreme Court opinion, in the Kelo eminent domain case, redefined “public use” to mean “public purpose”, and demonstrated a pro-active court and the influence of men, not law, on the American people. All such questions raise the question of, “Where stands the Constitution?”

The Kerchner Petition addressed the role of the judiciary in upholding the balance of powers under the Constitution by not deferring to the legislature to solve all issues. Kerchner argues for the courts to standby their obligations to maintain that balance of powers,

The constitutional issue also cannot be decided by the political parties and a voting majority. Our nation is ultimately guided by the Constitution and the rule of law, not by majority rule. Allowing the political parties and the voting majorities to decide constitutional issues would be tantamount to amending the Constitution without going through the amendment process prescribed by Article V of the Constitution and abandoning the basic principles of republican government. p.29.

The courts, after rejecting the application of constitutional protections, as in the above-mentioned cases, offered consolation to homeowners by informing them that the legislature can “correct” the laws. (As homeowners have been told by numerous state attorneys generals who have broad powers to act, but refuse to do so). How can the Congress or a legislature correct a law when that law has been has been relegated secondary status in accordance with the court’s opinion of what’s good for society? As well said in Kerchner above, majority vote cannot amend the Constitution, and to allow majority vote to override the Constitution makes it meaningless. The supreme law of the land must control, as explicitly stated in the Constitution, and not the rule of men. Get a new Supreme Court Justice and we can get new constitutional laws. Kerchner adds,


But what happens when Congress also refuses to perform its constitutional duty . . . ? Surely the Constitution would not leave someone like the petitioners without any remedy to protect the same rights which the Declaration of Independence and the Constitution recognize as their unalienable rights to life, liberty, and property. (See Marbury v. Madison, “where there is a right there is a remedy”).

. . . .

If neither Congress nor the Executive branches of government will give the petitioners that protection to which the Constitution entitles them, they should have access to the courts to be able to protect and vindicate their own rights to that protection. This right to access to the courts is more critical when both the executive and legislature are acting in concert to deprive the petitioners of their right to this protection. p. 30.

This is the sad state of affairs in America today, where the Constitution has been ignored by the courts and the legislatures in favor of private de facto HOA principalities that owe little allegiance or obedience to our system of government. Where public government in total approves of the homeowners association with its repudiation of our American system of government. Where men rule according to their particular beliefs, and those beliefs often hold the Constitution secondary to their personal agendas.


i  Kerchner v. Obama, II, No. 10-446, Petition for a Writ of Certiorari, Sept. 30, 2010.


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2 CommentsLeave a comment

  1. The Supreme Court DENIED to hear the Petititon, Nov. 29, 2010. See prior comment.

  2. Supreme Court Justice Robert Jackson opined in Brown v. Allen: “We are not final because we are infallible, but we are infallible because we are final.”

    That is the achilles heel of our judicial system — unjust laws that are upheld continue to be unjust due to the necessity to maintain the illusion of a duty to obey the judgments of the courts. “Justice has been served” by a neutral and impartial tribunal. However, precedent can be overturned by a recourse to justice over form and procedure.

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