Freedom First Society


How to Perpetuate Roe vs. Wade

Writing for Conservative Review about the “worthless” confirmation hearings for SCOTUS nominee Brett Kavanaugh, Daniel E. Horowitz starts with a question we consider fundamental:

How much longer are conservatives going to continue playing this cat-and-mouse game with the courts? Democrats have demonstrated that through their ideological extremism and shamelessness, they will savage any nominee, whether he is in the mold of Anthony Kennedy or Clarence Thomas. They will accuse us of litmus tests and having guarantees, as they absolutely have from every one of their lower court and Supreme Court nominees. So why not actually nominate a guaranteed Clarence Thomas who is unashamed to articulate the authentic view of the important constitutional clauses without playing the game of agreeing with premises of people who will never vote for you anyway?
— Daniel E. Horowitz, Top 9 observations on the worthless Kavanaugh hearings, September 6, 2018

Exactly. Given Trump’s opportunity to nominate a real constitutionalist to replace Justice Anthony Kennedy — who upheld Roe vs. Wade every time he had the chance — why waste it by nominating a clone of Kennedy?

Kavanaugh No Threat to Roe
Make no mistake: Despite Leftist propaganda, the Kavanaugh nomination poses no threat to Roe — a ruling which even a majority of liberal judicial scholars considers embarrassingly unconstitutional. Rather, this nomination’s perpetuation of Roe is much more likely:

When prompted by [Sen. Dianne] Feinstein on Roe and Casey, Kavanaugh emphatically referred to these cases as “precedent upon precedent.” It seems that with every new GOP nominee, with the exception of Alito, the nominees get more categorical with their agreement thatRoe is settled, and it seems that Kavanaugh used the most unqualified language…. Anyone who tells you [Kavanaugh] is likely to overturn Roe is lying. We just don’t know, and he certainly indicated the opposite. This was the 45-year promise, and it’s gone.
— Daniel E. Horowitz, ibid.

With regard to Trump, however, one must admit that the man never campaigned very seriously as anti-abortion or pro-family — or even constitutionalist. It is not really surprising, therefore, that he followed such bad “advice” as to nominate Kavanaugh.

Pro-Family Groups AWOL
What is shocking, even if it shouldn’t come as a real surprise, is that so many “Christian” and other allegedly “pro-family” groups — on the whole sadly AWOL, on family issues, since Trump’s inauguration — have supported or been at best wishy-washy about Kavanaugh’s confirmation. They are thus betraying their own constituency — including the tens of millions of unborn babies aborted because of the 1973 Roe ruling.

One notable exception to the “fecklessness” (Horowitz’s description) of conservative groups, re Kavanaugh, is the Judicial Action Group. Their Phillip L. Jauregui came out strongly against not only Kavanaugh’s nomination, but also his confirmation. (Unfortunately, Jauregui’s prediction of that confirmation’s failure was overly optimistic.) Also a very few conservative authors or journalists, including Cliff Kincaid and Gregg Jackson, have excoriated the Kavanaugh nomination and called for its rejection.

But again, these are the exception to the rule. Namby-pamby “pro-family” groups who expressed some doubts re Kavanaugh but remained non-committal pending his confirmation hearings, have swallowed the poisonous advice of well-known “Pied Piper” Tony Perkins, of the “Family Research Council”:

“Anyone who doubts Kavanaugh’s bona fides should keep in mind: this president has an exceptional track record on the judiciary,” says FRC’s Tony Perkins. “For the time being, we have to trust President Trump’s judgment — a benefit of the doubt that, based on his previous nominees, he’s earned.”
— OneNewsNow, Questions about Kavanaugh temper enthusiasm for Trump pick, July 11, 2018

Say what? Perkins is effectively advising us to put personality above principle. But conservatives, particularly Republicans, have had 60 years to notice how suicidal that strategy is. Nor has any media source — including any “right-wing” media — ever explained how that strategy makes any sense.

So, what does explain the recent AWOL and feckless nature of the “pro-family” lobby? There seems no shortage of money sloshing around in those groups; but, apparently, the agenda that these dollars are pushing is not really the “Christian,” pro-family, or Americanist one. Rather, their absence of principled opposition to Kavanaugh suggests a strange willingness to reinforce Roe vs. Wade as (horribly unconstitutional) judicial precedent.

True pro-family conservatives need to get much more selective, regarding to whom they send their hard-earned dollars — as well as, whom they support for their Congressional seats, and for other federal offices. One telltale sign of a group or campaign that is set up simply to siphon off conservative money and make it ineffective is that the group or campaign never mentions Congress’s constitutional power, in Art. III, Sec. 2, to restrict the jurisdiction of federal courts.

For Whom the Court Toils

What most Americans considered unthinkable just a few decades ago — Supreme Court mandated recognition of same-sex marriage —is now reality. Those concerned about the widespread attack on traditional morality and the family would do well to learn more about what the Supreme Court has done, what drove the decision, and what can and must be done to return America to Constitution-based Federal-Court rulings.

A Flagrant Judicial Usurpation

There are few Supreme Court rulings, we must assume, where a large number even of those supporting the decision feel compelled nevertheless to repudiate, publicly, the Court’s reasoning. Yet there was widespread, serious dissatisfaction among those who longed for the Court to vindicate same-sex marriage and who read its opinion.

One of the clearest summaries of the consensus spanning the political spectrum comes from just such a same-sex-marriage supporter:

To phrase things delicately, the Supreme Court’s recent decisions in King v. Burwell and Obergefell v. Hodges are unequivocally horrendous. Legal textualists and political conservatives will remember these majority opinions as among the worst of the twenty-first century. While Kelo v. New London and NFIB v. Sebelius were equally despicable, these cases at least were based on plausible, albeit highly flawed, interpretations of existing law. King and Obergefell, in contrast, are purely results-oriented decisions that are at best maladroit workmanship and at worst flagrant judicial usurpations of legislative authority.

Was Obergefell really an instance of well-intentioned but “maladroit workmanship” or instead one of ill-intentioned, “flagrant judicial usurpation of legislative authority”? And if the latter, what was the real motive?

An Unexpected Argument

Same-sex-marriage supporters had generally expected the Court to pursue the line of argument usually taken in same-sex marriage cases that had been brought in state courts. That line was based on the Fourteenth Amendment’s “equal protection” clause: That clause forbids every state to “deny to any person within its jurisdiction the equal protection of the laws.”

The contention was that, given this clause, marriage laws should not treat homosexual couples any differently than they treat heterosexual couples.

However, for reasons that we explain in a separate article, an argument based on “equality” alone would have been quite frail and susceptible to devastating criticism. Another main argument was needed. And for this, the majority availed themselves of the long discredited appeal to the Fourteenth Amendment’s “substantive due process” clause.

And, in doing so, the majority, led by Justice Kennedy, relied on a slippery meaning-change for the term marriage.

Redefining Marriage

In the view of Chief Justice Roberts, who strongly opposed the ruling, that slippery meaning-change was, in fact, the real point:

The fundamental right to marry does not include a right to make a State change its definition of marriage. … There is no serious dispute that, under our precedents, the Constitution protects a right to marry and requires States to apply their marriage laws equally. The real question in these [current] cases is what constitutes “marriage,” or—more precisely—who decides what constitutes “marriage”? … These precedents say nothing at all about a right to make a State change its definition of marriage, which is the right petitioners actually seek here.

Roberts summarized his objection to the very thinly argued case of the proponents: “The majority’s decision is an act of will, not legal judgment.” The other dissenting Justices seemed to agree.

For Whom, REALLY, Was This Ruling Made?

But why would a majority of the Supreme Court risk their judicial reputation on such an obviously unconstitutional decision – which is already seen widely as such? What goal would make it worthwhile? And in particular, if the justices didn’t see “dignity”-seeking gays as the constituency that their ruling was serving, whom did they see it as serving?

A scholarly article, by Douglas NeJaime, in The Yale Law Journal in Sept. 2013, helps us answer that question. That article approved thoroughly of Justice Kennedy’s redefinition of marriage as expressed in United States v. Windsor (2013, striking down the Defense Of Marriage Act), also using the “substantive due process” approach to gay rights that he had first displayed in Lawrence (2003). And the article argues that the redefinition is responding to a revolutionary movement:

This Essay relates Windsor to a model of marriage ascendant over the course of the last several decades and to LGBT advocacy that has mapped same-sex couples onto that model. … a shift from a marriage model rooted in procreation and gender differentiation to one characterized by mutual emotional support, economic interdependence, and community recognition. … Justice Kennedy’s treatment of marriage in Windsor fits within this trajectory….

Of course, the Court is not conceptualizing marriage and its relationship to same-sex couples in a vacuum. Instead, it is responding to legal, cultural, and demographic shifts relating to marriage, as well as to LGBT advocates’ appeal to those shifts to claim rights for constituents. … Beginning in the 1980s, LGBT advocates mapped same-sex couples onto ascendant marital norms that stressed adult romantic affiliation and emotional and financial interdependence—marriage’s private dimensions….

Justice Kennedy’s rendering of marriage in Windsor is responsive to LGBT advocates’ contextualization of same-sex couples within extant marital norms. [Emphasis ours.]

Hey! Hang on a minute: Who are these “LGBT advocates,” to whose “contextualization of same-sex couples within extant marital norms” Kennedy’s new treatment of marriage “is responsive”?

Well, there were the more open advocates, and the more secretive ones: but they had all been pushing, for many years, the strategy of holding out same-sex “marriage” as just another, valid kind of marriage. Michael Gerson, exulting over the Obergefell v. Hodges ruling, credits two of the better known advocates of this strategy:

Why has the gay rights movement been so dramatically successful? Certainly, the people who came out to family and friends — often at considerable risk and cost — humanized an abstract debate. Fictional gay characters — see “Glee” and “Modern Family” — did much the same.

But perhaps the most significant shift in strategy came from public intellectuals such as Jonathan Rauch and Andrew Sullivan, who urged gays to embrace the conventional, bourgeois practice of marriage. What had seemed to many Americans a sexual liberationist movement requested access to the institution designed to limit sexual freedom for the sake of social order and effective child-rearing (while delivering joys that arise only out of commitment). Many gay rights advocates essentially made conservative arguments — concerning the individual and social benefits of faithfulness — to secure their legal goal.  It is a form of gay rights that Middle America — already inclined to live and let live — could readily embrace.

Then there were the more private “LGBT advocates” — the revolutionaries making the war plans and directing the troops. If anyone doubts the existence of a more or less secretive cabal of LGBT war-planners, they should read articles that have been documenting their subversive agenda since the 1990’s.

In 1989, Marshall Kirk and Hunter Madsen, professionals in neuropsychiatric research and commercial advertising, respectively, published After the Ball: How America will conquer its fear and hatred of gays in the ’90s. Their book constituted a manual for the “overhauling of straight America.” In particular, they mapped out a strategy for deceptively promoting homosexuality in entertainment, the media, and education under the guise of a struggle for homosexual “rights”:

At least at the outset, we seek desensitization and nothing more. You can forget about trying right up front to persuade folks that homosexuality is a good thing. But if you can get them to think that it is just another thing — meriting no more than a shrug of the shoulders — then your battle for legal and social rights is virtually won.

But their ultimate objective was the conversion of straight America:

[B]y Conversion we actually mean something far more profoundly threatening to the American Way of Life…. We mean conversion of the average American’s emotions, mind and will, through a planned psychological attack, in the form of propaganda fed to the nation via the media. We mean ‘subverting’ the mechanism of prejudice to our own ends — using the very processes that made America hate us to turn their hatred into warm regard — whether they like it or not. (p. 153)

According to Douglas NeJaime, it is to such (revolutionary, subversive) “advocates” that Justice Kennedy’s new treatment of marriage “is responsive.”

In short, the Supreme Court ruling was not an attempt to enforce ostensibly Constitutional rights. Its intention was a revolutionary one, and it had no other motive.

What, Then, Is To Be Done?

Therefore, the solution is not in another Court case or better arguing before the Court. Justice Alito was unfortunately mistaken in believing that his “colleagues in the majority sincerely see in the Constitution a vision of liberty that happens to coincide with their own.” Yet in the same passage he shared some perceptive concerns about the future of American jurisprudence:

Today’s decision shows that decades of attempts to restrain this Court’s abuse of its authority have failed. A lesson that some will take from today’s decision is that preaching about the proper method of interpreting the Constitution or the virtues of judicial self-restraint and humility cannot compete with the temptation to achieve what is viewed as a noble end by any practicable means. …

Most Americans—understandably—will cheer or lament today’s decision because of their views on the issue of same-sex marriage. But all Americans, whatever their thinking on that issue, should worry about what the majority’s claim of power portends.

That last statement is exactly right. This Court has thrown out the Constitution and the American system of jurisprudence. Its decisions no longer have anything to do with them.

And lest anyone think that the revolutionary assault is over, they need to realize that revolutionaries are never satisfied, short of total revolution. With any victory, standard revolutionary practice is just to up the ante.

Consider the story in the July 3, 2011 Northern Colorado Gazette, “Pedophiles want same rights as homosexuals”:

Using the same tactics used by “gay” rights activists, pedophiles have begun to seek similar status arguing their desire for children is a sexual orientation no different than heterosexual or homosexuals.

Critics of the homosexual lifestyle have long claimed that once it became acceptable to identify homosexuality as simply an “alternative lifestyle” or sexual orientation, logically nothing would be off limits.

The story documents studies and federal actions already underway leading up to just such legitimization of pedophilia. It would be a great mistake to put beyond this current Supreme Court the overturning of state laws against pedophilia.

This Court understands only power – and, the ability and will to use it. Therefore, the only solution available to us is to learn about, and then to show the courage and ability to wield, the powers that we have under the Constitution for the reining in of a rebellious, or even revolutionary Supreme Court.

As Don Fotheringham has explained, impeachment is not the only solution – although certainly it is one route available. Another, of which most Americans are unaware, is to restrict the appellate jurisdiction of the Supreme Court. Don Fotheringham explains the means that the Constitution provides for curbing a federal judiciary run amok, in the lead article for our “Campaign for Decency – Curb the Courts.”

This concerted-action campaign needs the volunteer membership of many concerned Americans, to help convince Congress to reign in this revolution-seeking Supreme Court. Moreover, an out-of-control Supreme Court is only one part of a larger revolutionary assault that must be confronted in its entirety. We invite readers to consider the program of Freedom First Society.





The Court’s Strange Argument in Obergefell

Same-sex-marriage supporters had generally expected the Supreme Court to pursue in Obergefell v. Hodges the line of argument usually taken in same-sex marriage cases that had been brought in state courts. That line was based on the Fourteenth Amendment’s “equal protection” clause, which forbids every state to “deny to any person within its jurisdiction the equal protection of the laws.”

The contention was that, given this clause, marriage laws should not treat heterosexual couples any differently than they treat homosexual couples. (One writer distinguished between this line of argument and that of “non-discrimination.” But since “equality” under the law implies non-discrimination in the application of the laws, most writers treated these two as basically the same argument.)

As at least one writer mentioned, the majority in Obergefell did vaguely “nod to” this previous line of argument. For example, the majority framed the situation thus in the Syllabus (i.e., summary) of their opinion: “The marriage laws at issue are in essence unequal: Same-sex couples are denied benefits afforded opposite-sex couples and are barred from exercising a fundamental right.”

But their “nod” to equality seemed to be more or less window dressing for the real argument. As Chief Justice Roberts writes,

The majority goes on to assert in conclusory fashion that the Equal Protection Clause provides an alternative basis for its holding. … Yet the majority fails to provide even a single sentence explaining how the Equal Protection Clause supplies independent weight for its position….

And anyway, in retrospect it is clear that that to use “equality” as a serious line of argument would have failed spectacularly. That becomes obvious from a reading of the four dissenting justices’ opinions.

One reason it would have failed is that non-discrimination or equality of access to certain legal benefits that the government has attached to marriage, though potentially an issue, was not what the petitioners were asking for: again to quote Chief Justice Roberts,

It is important to note with precision which laws petitioners have challenged. Although they discuss some of the ancillary legal benefits that accompany marriage, such as hospital visitation rights and recognition of spousal status on official documents, petitioners’ lawsuits target the laws defining marriage generally rather than those allocating benefits specifically. The equal protection analysis might be different, in my view, if we were confronted with a more focused challenge to the denial of certain tangible benefits.

A second reason for it to fail is that the idea of non-discriminatory application of laws of marriage, as that had been argued (successfully) in a number of “right to marry” cases, cannot apply to same-sex couples, because, as Roberts points out, they all had to do with “marriage” as traditionally defined:

None of the laws at issue in those [‘right to marry’] cases purported to change the core definition of marriage as the union of a man and a woman. The laws challenged in Zablocki and Turner did not define marriage as “the union of a man and a woman, where neither party owes child support or is in prison.” Nor did the interracial marriage ban at issue in Loving define marriage as “the union of a man and a woman of the same race.” … Removing racial barriers to marriage therefore did not change what a marriage was any more than integrating schools changed what a school was. As the majority admits, the institution of “marriage” discussed in every one of these cases “presumed a relationship involving opposite-sex partners.”

In short, the “right to marry” cases stand for the important but limited proposition that particular restrictions on access to marriage as traditionally defined violate due process.

A third reason for the “equality” line of argument to fail is that it could be possible to argue that same-sex couples did not have equal treatment under the marriage laws – and thus did not have equal access to its benefits – but only if the argument assumed the radically altered definition of marriage which was, in effect, what the petitioners were requesting. But in that case, the majority would clearly be arguing in a circle – which is a well-known type of fallacy.

Justice Alito saw this difficulty clearly (interpolations and emphasis ours):

Attempting to circumvent the problem presented by the newness of the [same-sex marriage] right found in these [recent state-level] cases, the majority claims that the issue is the right to equal treatment. Noting that marriage is a fundamental right, the majority argues that a State has no valid reason for denying that right to same-sex couples. This reasoning is dependent upon a particular understanding of the purpose of civil marriage. Although the Court expresses the point in loftier terms, its argument is that the fundamental pur­pose of marriage is to promote the well-being of those who choose to marry. Marriage provides emotional fulfillment and the promise of support in times of need. And by benefiting persons who choose to wed, marriage indirectly benefits society because persons who live in stable, fulfilling, and supportive relationships make better citizens. It is for these reasons, the argument goes, that States encourage and formalize marriage, confer special benefits on married persons, and also impose some special obligations. This understanding of the States’ reasons for recognizing marriage enables the majority to argue that same-sex marriage serves the States’ objectives in the same way as opposite-sex marriage.

This understanding of marriage, which focuses almost entirely on the happiness of persons who choose to marry, is shared by many people today, but it is not the traditional one. For millennia, marriage was inextricably linked to the one thing that only an opposite-sex couple can do: procreate.1

Thus, the openly circular nature of the only “equal protection” argument they could have offered, made it inadvisable to use that line of argument at all seriously. The majority needed another main argument – or at least, one that would take the lion’s share of the scrutiny, so people wouldn’t notice the obvious weakness in the “equality” argument.

Switch to Plan B

What they did was bring in the idea of a “fundamental right to dignity”. It could hardly be denied, after all, that same-sex couples might feel deprived of dignity if not given access to marriage.

To find that “right” in the Constitution, the majority invoked the Fourteenth Amendment’s “due process” clause, interpreted as guaranteeing “substantive due process.” We wrote about “substantive due process” in our article about the idea of a “living” Constitution. This specious and empty concept, which has given rise to many federal court cases, was well summed up by Justice Scalia in his dissenting opinion in Obergefell: “It stands for nothing whatever, except those freedoms and entitlements that this Court really likes.” It is thus just a blank check for judicial activism.

Though on the surface this seems a dubious change of tactics, at least a couple of scholars had noticed its potential, and already written journal articles in favor of it. Interestingly, these writers seem to be not only of a more scholarly ilk, but also more interested in tactics and bringing about radical change, than in same-sex couples’ felt need for “dignity” or “equality.”

Consider for example this abstract (summary) of a May 2012 journal article by Peter Odell Campbell:

This essay discusses Justice Anthony M. Kennedy’s choice to foreground arguments from due process rather than equal protection in the majority opinion in Lawrence v. Texas. Kennedy’s choice can realize constitutional legal doctrine that is more consistent with radical queer politics than arguments from equal protection. Unlike some recent critiques of Kennedy’s opinion, a queer rhetorical analysis of Lawrence reveals a futuristic, always-open-to-change vision in Kennedy’s rhetorical framing of constitutional law that is significantly less damaging to possibilities for “queer world making” in the United States than other contemporary US judicial arguments of and about sexuality.

For “futuristic, always-open-to-change vision” we can read, “such a vague notion of ‘due process’ it can never be pinned down or refuted.” But note especially the author’s dominant interest in “radical queer politics” and “‘queer world making’.” (The above article is entitled, “The Procedural Queer: Substantive Due Process, Lawrence v. Texas, and Queer Rhetorical Futures.”)

Another scholarly article, by Douglas NeJaime, appeared in The Yale Law Journal in Sept. 2013, with more reserved language than the one just cited but with apparently the same, mainly tactical motivation. It approved thoroughly Kennedy’s continuation, in United States v. Windsor (2013, striking down the Defense Of Marriage Act), of the “substantive due process” approach to gay rights that he had first displayed in Lawrence (2003). And the article seemed very optimistic that this approach would be a powerful one in future, same-sex-marriage cases.

The Subtle Fallacy in the “Substantive Due Process” Approach

However, if only very few commentators seem to have noticed a weakness in the “equal protection” line of argument, even fewer have noticed one fatal weakness in the “due process” line of argument (besides the widely doubted “substantive due process” notion). That overlooked but serious fallacy is related here also to the desire to change the meaning of “marriage.”

But in this argument, the fallacy is that the meaning of that key term is altered in the course of the argument. Such a key term’s meaning-change within an argument is called “equivocation” – another well-known type of logical fallacy.

The argument goes like this, after all: “The laws at issue have kept these petitioners out of the marriage bond. But marriage is a right that is so fundamental it should be available to all couples, regardless of gender. So, those laws should be thrown out.”

The overlooked problem with this “fundamental right” argument is that its first premise is clearly false unless in it the term marriage means traditional marriage (i.e., defined as between a man and a woman). Yet, the second premise is clearly false unless in it the term means something else, i.e., the watered-down meaning of “marriage” that the majority was arguing for. Thus, either the argument contains at least one false premise; or else, it suffers from the fallacy of equivocation.

This fallacy of equivocation would more likely have been noticed, if the “equality” issue had not been invoked also and claimed as relevant. So that is probably why the majority brought it up. By mentioning both lines of argument, and claiming a close connection between them, they used each one as an effective smokescreen for the (otherwise more obvious) fallacy in the other.


Note 1: To give the Devil his due, the majority did actually – in one place and in a seemingly token gesture (three sentences long) – argue that for all those millennia, the concept of marriage was really not “inextricably linked” to the idea of procreation. In short, the definition of marriage as only between people of opposite genders does not accurately define the essence of the age-old concept! The true meaning of marriage is no less applicable to homosexual couples! Here is their entire argument (pp. 15-16 in their opinion, emphasis ours):

That is not to say the right to marry is less meaningful for those who do not or cannot have children. An ability, desire, or promise to procreate is not and has not been a prerequisite for a valid marriage in any State. In light of precedent protecting the right of a married couple not to procreate, it cannot be said the Court or the States have conditioned the right to marry on the capacity or commitment to procreate. The constitutional marriage right has many aspects, of which childbearing is only one.

So, all judges down through the millennia stand corrected! But unsurprisingly, the audacious, little argument is fallacious: it attacks a “straw man”, i.e. a position its opponents do not really hold. It assumes, falsely, that the traditional definition of marriage entails “an ability, desire, or promise to procreate.” But in Justice Alito’s paragraph next after those just quoted, he states the traditional position more accurately (emphasis ours):

Adherents to different schools of philosophy use different terms to explain why society should formalize marriage and attach special benefits and obligations to persons who marry. Here, the States defending their adherence to the traditional understanding of marriage have explained their position using the pragmatic vocabulary that characterizes most American political discourse. Their basic argument is that States formalize and promote marriage, unlike other fulfilling human relationships, in order to encourage potentially procreative conduct to take place within a lasting unit that has long been thought to provide the best atmosphere for raising children. They thus argue that there are reasonable secular grounds for restricting marriage to opposite-sex couples.

The definition of “marriage” that the States were using was thus concerned with, not “an ability, desire, or promise to procreate”, but “potentially procreative activity.” Thus, it has in view only opposite-sex couples, whose sex is naturally “potentially procreative activity.” But this definition, which is perfectly rational and historically correct, escapes completely the force of the majority’s straw-man argument, since it has in view any and all normal sex between persons of opposite genders (but leaves out of view, really, all abnormal, i.e. not-potentially-procreative “sexual” activities, e.g. anal and oral “sex”).

“Living” Is Fatal For Constitutions

 A long exposed constitutional heresy undergirds the June 26, 2015 Supreme Court decision supporting same-sex marriage.

[T]he candid citizen must confess that if the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.
 — First Inaugural Address by Abraham Lincoln, March 4, 1861, in A. LINCOLN, SPEECHES AND LETTERS 171–72 (M. Roe ed. 1894).

As many Americans know, the U.S. Constitution’s Tenth Amendment says, in essence, that the federal government has no power or authority that is not granted to it, explicitly, in this Constitution; and it cannot prohibit to the States any power or authority not prohibited to them, explicitly, in this Constitution. Thus the amendment makes very clear the force and purpose of our Constitution.

Now, try to imagine a scenario in which “We The People”, in drafting this Amendment (via our elected representatives), decide to add this proviso: “However, the federal government has, in addition, the authority to interpret the Constitution without regard to the text’s meaning; thus, it may find therein any new powers or authorities it wishes it to grant to itself, and any new prohibitions of power or authority it wishes it to make to the States.

Would that scenario make any sense? Would not such a proviso nullify the previous statement in the Tenth Amendment – or rather, even effect its opposite – and thereby nullify the Constitution? Of course it would.

However, a majority of current Supreme Court justices have, in effect, assumed this proviso; and its presumption formed the basis of the Supreme Court decision overturning state laws against same-sex marriage. Moreover, its presumption was behind many other Constitution-twisting Supreme Court decisions in the past, such as the abortion-legalizing decision in 1973.

A “Living” Constitution

In what form, and what terms, does this presumption appear? Incredibly, it has been elevated to the status of a legal doctrine – one actually promoted in some judicial circles, though hardly ever mentioned in the news media. As such, it has a name: it is the idea that we have a “living” Constitution – one that evolves with the changing times, without having to be amended by a stipulated, time-consuming procedure.

It goes without saying, that none of the proponents of this presumption would want their writings treated with the willful twisting of intent they advise us to apply to the Constitution. For then, we could read into their writings the very opposite of their intended sense, on any day(s) that we deemed it appropriate.

The idea did not always go under the name “living Constitution,” however. As former Supreme Court Chief Justice William Rehnquist points out, it reared its head first in the notorious Dred Scott decision (1857), which overturned the Missouri Compromise (about slavery). The basis of that Supreme Court decision was a flagrant distortion of the Fifth Amendment’s “due process” clause:

[No person shall] be deprived of life, liberty, or property without due process of law….

Please note, “process of law” means just that: a legal procedure – or more specifically, a trial. “Due process” means simply, a trial conducted according to the applicable procedural rules. Thus, the “due process” clause enjoins the following of the appropriate procedural law; it says nothing about the substantive law being applied via the procedure.

This clear, original sense of the legal concept “due process of law” is sometimes called “procedural due process” (an obvious circumlocution). This is to distinguish it from the nebulous meaning into which Dred Scott twisted the phrase. The latter is often called “substantive due process,” a contradiction in terms: it means, basically, what substantive law (as opposed to, procedural law) would qualify as fair and right, in the situation, according to the judge’s inmost feelings and intuitions. In short: it is a rationalization for the judge’s own twisting of the law.

It is good to read the Court’s original statement, from that decision, as well as the decision’s pungent rebuttal from one of the dissenting justices. For neither its invocation nor its rebuttal has probably ever been, or could be, expressed any more accurately. In his dissenting opinion in the recent Supreme Court decision about same-sex marriage, Chief Justice John G. Roberts quoted both statements:

[T]he Court invalidated the Missouri Compromise on the ground that legislation restricting the institution of slavery violated the implied rights of slaveholders. The Court relied on its own conception of liberty and property in doing so. It asserted that “an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States . . . could hardly be dignified with the name of due process of law.” In a dissent that has outlasted the majority opinion, Justice Curtis explained that when the “fixed rules which govern the interpretation of laws [are] abandoned, and the theoretical opinions of individuals are allowed to control” the Constitution’s meaning, “we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.”  [pp. 50-51; the interpolation and first ellipsis are by Chief Justice Roberts]

The “due process” and other clauses in the Fifth Amendment restrict the Federal government. After the Civil War, the Fourteenth Amendment invoked the “due process” language again – against the states. But fortunately, the “substantive due process” idea did no further damage –until 1897.

In that year, the Fourteenth Amendment’s “due process” clause became the basis for more Constitution-twisting in Allgeyer v. Louisiana (165 U. S. 578). Likewise based on “substantive due process”, but gaining more notoriety, was 1905’s Lochner v. New York decision (198 U. S. 45). That case started a rash of similar decisions, in a now discredited judicial period known as “the Lochner era”. By making use of the “substantive due process” idea, during this time “the Court struck down nearly 200 laws as violations of individual liberty, often over strong dissents contending that ‘[t]he criterion of constitutionality is not whether we believe the law to be for the public good.’” (Roberts, ibid., pg. 52 in the decision document.)

Interestingly, the first use of the word “living” to describe the Constitution as a malleable, twistable discourse was apparently in a 1908 book by Woodrow Wilson, who urged the approach. In true Progressive style, he preached an adaptable, evolutionary Constitution through creative text-twisting.

The end of the Lochner era is usually estimated at about 1937. After that year a strong reaction set in as the judicial consensus arose that in its use of “substantive due process”, the Court had far overreached its authority. But numerous decisions since then (e.g., 1973’s Roe v. Wade) testify to the powerful temptation this idea holds still for justices who wish to alter public policy. In response to its most recent deployment, Chief Justice Roberts opined that the majority’s “aggressive application of substantive due process breaks sharply with decades of precedent and returns the Court to the unprincipled approach of Lochner.” (pg. 54 in the decision document.)

So What Can We Do?

So, how do we control a federal judiciary that believes it has a divine right – and maybe an obligation – to twist the Constitution? It should be obvious that the only sort of Constitutional amendment that could address the problem would be one that repeals the Fourteenth Amendment’s “due process” clause. But how likely does the passage of such an amendment seem? And any call for a different amendment as an alleged solution would clearly be specious.

Is there a more-sensible approach? Indeed there is, one that requires only a simple majority of Congress. In an incisive article, Don Fotheringham has introduced us to the solution that our Founding Fathers built into the Constitution. Every American should read this enlightening article.

Furthermore, every American needs to recognize that we cannot rely on the mass news media to inform the rest of the citizenry about the problem, much less about the solution. As a forthcoming booklet from FFS, Media-Controlled Delusion, makes clear, the media are far too interested in promoting their own, usually liberal agendas – such as, the hidden agenda regarding same-sex marriage (see that booklet’s Chap. 3).

Instead, concerned Americans must join in an organized effort to educate their fellow citizens – an effort that bypasses the major media – such as our own “Campaign for Decency – Curb The Courts”. This is the only kind of approach, today, that has a chance to succeed. But there is no reason at all why it cannot. Contact the FFS to find out more.


Good News in the “Culture War”

Same-sex civil unions bill fails in Colorado” — Reuters, 5-9-2012

North Carolina Voters Pass Same-Sex Marriage Ban” — New York Times, 5-8-2012

Arizona bans funding of Planned Parenthood” — CNN, 5-5-2012

Georgia bans most late-terms abortions, assisted suicide” — Reuters, 5-1-2012

FFS: Despite the recent good news in the culture war, the long-term outlook is bleak unless more Americans recognize the deceptions and true objectives of the Establishment organizations driving the revolution. Please see our May Action Report and Masters of Deception.

Note also: In an ABC interview on May 9th, President Obama came out in support of same-sex marriage. See below:

Obama declares support for gay marriage” — ABC OTUS News, 5-9-2012


Time to Curb the Court

Campaign for Decency

We must marvel at the foresight of America’s founders. They looked centuries beyond their time and provided ways to save us from the dreadful effects of our own negligence. They gave us the means to correct a remiss Congress, to contain a power-prone president, and to limit an out-of-control Supreme Court. We may not deserve the safety measures handed down to us, but those provisions are clearly spelled out in the Constitution just waiting for us to use them.

From among the many wise provisions of our founders we find one particular safeguard we should welcome like fresh air in a stuffy courtroom. It’s that clause found in Article III, Section 2, providentially written as follows: “…the supreme Court shall have appellate Jurisdiction, both as to law and fact, with such Exceptions, and under such Regulations as the Congress shall make.” 

It was never the intention of our founders to create an all-powerful, unaccountable Supreme Court. Each department of government has clearly defined bounds, but each also has oversight power that we call checks and balances. Most everyone is familiar with the president’s power to veto legislation and the offsetting power of Congress to override it. Also well known are certain checks on power through the nomination and confirmation process, and the ultimate check of impeachment, or at least the threat thereof.

The Exceptions Clause

So it is with the Supreme Court. Congress has a way to prevent its perverse rulings on appellate cases. The history of our country, even before the Constitution was ratified, confirms that there never was any misunderstanding about the meaning and viability of the exceptions clause of Article III. In 1796 Oliver Ellsworth, Chief Justice of the United States recognized not merely the option, but the essence of congressional limits on the Court’s appellate jurisdiction. This view was confirmed again by Chief Justice John Marshall in 1805 and has been affirmed by all Supreme Court justices who have commented on the subject.

The constitutional power of Congress to check the Court is alive today and remains one of the most timely and compelling mechanisms available to the American people. This means there never was any excuse for our nation’s moral standards to be mocked and demeaned by activist Supreme Court justices. Lower court cases, which have been settled on moral or religious grounds, find their way to the Supreme Court by the appeal process. Those kinds of cases — either individually or as a group — can be singled out by Congress and excluded from review by the Supreme Court.

Among landmark cases corrupted by the Supreme Court are the denial of Bible reading in public schools, prohibition of school prayer, the legalizing of abortion, banning religious displays in public places, legalizing sodomy, and defending pornography. Congress clearly has the power to make exceptions to those kinds of cases and block their review by the higher court.

In this carefully focused effort, a good question arises: If we seek to restrain the Supreme Court, why can we not also restrain the federal district courts? For certain, many of the lower courts are equally flagrant in their disrespect for moral standards. But unfortunately we cannot take on the lower courts and the high court at the same time, or at least not in this first stage of our Campaign for Decency.

Two Different Procedures

Control of the two court systems entails two different legal routes. Trying to combine the two goals into one legal action would very likely hamper, or even prevent, success. We need to explain:

The Supreme Court and the inferior federal courts cannot be limited by Congress in the same way because the two levels of the federal judiciary came into being through different levels of power. The power creating the Supreme Court was structural. It was created by the Convention of 1787, along with the mode of controlling it. On this constitutional basis, Congress may limit the appellate jurisdiction of the Supreme Court without asking permission and without passing a pertaining law. The lower courts, on the other hand, are an entirely different breed. These district courts were created by Congress, and their jurisdiction can thus be limited only by enacting a law for doing so.

For these and other carefully assessed considerations, our Campaign for Decency faces off initially only with the Supreme Court where the opportunity for success is greater than through a combination bill such as H.R.539, a measure presently before Congress. H.R.539 attempts to limit the two levels of courts at the same time through the same (statutory) procedure. But this process mixes apples and oranges, which may very well invalidate the bill. Moreover, as a formal bill, even if passed, H.R.539 must go to the president’s desk where it will face a certain veto.

Notice that no new laws are needed to execute the work of a department when its operations and options are established by the Constitution. The president, for example, may propose a budget, nominate ambassadors, or grant pardons without asking permission or without any new laws. Congress can make its own rules without any new laws, and the Supreme Court can try its original jurisdiction cases without asking permission. Similarly, Congress may exercise its constitutional power over the appellate jurisdiction of the High Court without asking permission or without any new laws.

Exceptions to this rule are constitutional provisions that require implementing legislation. But otherwise, no department of government need hesitate, or ask permission, to act within its established bounds. Thus Congress may limit the kinds of cases to be heard by the Supreme Court without any new laws or supplemental authority. Obviously, the exercise of an original structural power by any branch of government is not subject to a veto by the president. This is the avenue we propose for controlling the Supreme Court.

By Concurrent Resolution

How then, if not by passing a bill, does Congress notify the Supreme Court of new limits on its jurisdiction? This may be done by issuing a Concurrent Resolution, approved by a simple majority of the House and the Senate. That’s all. It is not a law, it is a statement through which Congress may assert a pre-existing constitutional authority, and by which the other departments of government are bound.

A recent example of the use of such a resolution is H.Con.Res.5, which affirms the pre-existing constitutional power of Congress to declare war. It was introduced in the House of Representatives in the 1st Session of the 111th Congress (with the Senate concurring) expressing that, according to Section 8 of Article I of the Constitution of the United States, Congress has the sole and exclusive power to declare war. Under this heading the “Whereas” clauses state the reasons and applications of the resolution.

A Concurrent Resolution to limit the Supreme Court would follow the same form, expressing that, “Pursuant to Section 2 of Article III of the Constitution of the United States, Congress has the sole and exclusive power to make regulations and exceptions to the appellate jurisdiction of the Supreme Court. Accordingly, effective this date, the Congress of the United States denies the Supreme Court appellate jurisdiction over cases relating to public or private religious expression, definitions of marriage, sexual practice, and abortion.”

Significantly, this procedure would accomplish our immediate purpose while safely circumventing the desk of the president.

The simplicity of this route and the independence of Congress in following it, should be a great advantage over previously defeated efforts. All such attempts have failed to get through the Senate, where reticence to face a veto by the president — any president — is most common. The Concurrent Resolution process bypasses that particular obstacle.

Correcting Past Sins

Okay, that should curb the Court’s passion for perversion, but what about its past sins? How do we nullify the existing immoral burdens imposed by former Supreme Courts? How for example do we reverse Roe v. Wade and Lawrence v. Texas?

That will take time. The Constitution does not provide Congress the means for nullifying past Court decisions. Therefore, each overturned case will have to be taken back to the court of its origin and re-tried.

Unfair? Yes, but the second time around the lawyers fighting for decency will have a slight advantage. They will have the same files, proven arguments, decent-thinking judges, and local juries. Under these refreshing circumstances, and knowing their work will not be overturned, the lawyers can move their cases quickly through the lower courts. Finally, the original moral decisions will be just and permanent. On this glorious occasion the moral spirit of America will once again be smiled upon by God.

But while God smiles, the Conspiracy will rage. And that is exactly the reason we have taken up this cause as a major campaign. While uplifting and inspiring the good men and women of America, we hope to expose the design of those who have placed the lowest form of evil on the highest public altar. By its deliberately crass and offensive display at the nation’s highest court, the Conspiracy has depressed and discouraged millions of Americans who think the whole nation wallows hopelessly in the sewers of Sodom and Gomorrah. This is an outlandish fraud, and we intend to expose and prove it.

Our Campaign for Decency will go a long way toward rekindling courage and hope in the American people, while showing the hand of the Conspiracy behind many of the most daunting problems of our time.

Specific action steps will be spelled out in subsequent Action Reports. Those steps will provide members with opportunities to help get an appropriate resolution or resolutions introduced in both houses of Congress, to build grassroots pressure on other congressmen to become co-sponsors, and to educate other activists and leaders on our side of the culture war regarding this opportunity. Stay tuned.


Gays and Lesbians to Serve Openly in Military

H.R. 2965 “Don’t Ask, Don’t Tell Repeal Act of 2010”

House Final Vote 12/15/10 (Roll no. 638)

Senate Final Vote 12/18/10 (Record Vote Number: 281)

Washington Post story following vote in Senate

FFS: During the “lame duck” session of Congress this past December, both the House and Senate allowed President Obama to deliver on his campaign payoff to the aggressive gay and lesbian “rights” lobby. Many voters would be surprised at some of the congressmen who went along with this outrageous assault on our nation’s military. (Note: some face-saving caveats were included in the legislation, such as additional certification of no harm, before the change goes into effect — see Post story above.) The final votes from are posted above.

The Culture War Against Marriage and the Family Gains a Victory

Hawaii lawmakers pass civil unions bill” (, 4/30/2010)

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