Dr. Edwin Vieira, IAI’s Distinguished Senior Fellow in Jurisprudence and Constitutional and Monetary Law, lectures on the nature of currency.
The provocative challenge of Cardinal Walter Kasper highlights one of the Church’s (and the churches’) most spectacular lapses in judgment: the refusal to contest the “abolition of marriage” (in Maggie Gallagher’s phrase) that was effected by “no-fault” divorce.
Yet as currently framed, the debate over Cardinal Kasper’s proposals stunningly misses the point. By casting the debate in terms of admitting divorced and remarried persons to communion, the Church appears determined once again to avoid confronting the central evil of the Divorce Revolution, the evil that still taints the Church, along with the family and civic life, and one no stable civilization can tolerate. This is involuntary divorce and the injustice committed against the forcibly divorced or innocent spouse, along with his or her children.
The Cardinal makes no distinction between a spouse who abandons the marriage, commits adultery, divorces unilaterally without recognized grounds (“no-fault”), or otherwise violates the marriage covenant in legally recognized ways, and a spouse who is the victim of such deeds. To treat the sinner and the sinned against as if they are the same is to deny the very concept of justice and to place the Church and other institutions on the side of injustice.
This willful neglect of justice in adjudicating divorce—not the dissolution of households per se—was the vitiating outrage of “no-fault” divorce. By not challenging the state’s claim that it may dissolve marriages without any consideration for the consequences or injustices inflicted on the forcibly divorced, the Church followed the state into the realm of amorality, a realm suited to the aggrandizement of institutional power but fundamentally antithetical to both the Gospel and a free society.
Since this fateful decision, the oxymoron of “no-fault” justice has been gradually poisoning both our culture and the fundamental institutions of our civilization, starting with the family, passing through the Church, and extending to the state machinery, such as the judiciary. Divorce-without-consequences is exacting a devastating toll on our children, our social order, our economic solvency, and our constitutional rights. It has led directly to explosions in cohabitation, illegitimacy, welfare, and crime and to demands for same-sex marriage.
No public debate preceded this ethical bombshell in the 1970s, and none has taken place since. Legislators “were not responding to widespread public pressure but rather acceding to the well-orchestrated lobbying of a few activists,” writes Bryce Christensen. Critically, these are the same sexual ideologues who have since expanded their campaign into a much broader agenda of sexual radicalism: same-sex marriage, abortion-on-demand, sex education, women in combat, homosexuals in the military, Obamacare, and more. Feminists were drafting no-fault divorce laws in the 1940s, which the National Association of Women Lawyers now describes as “the greatest project NAWL has ever undertaken.”
The result effectively abolished marriage as a legal contract. Today it is not possible to form a binding agreement to create a family.
The new laws did not stop at removing the requirement of citing grounds for a divorce, to allow divorce by mutual consent, as deceptively advertised at the time. Instead they created unilateral and involuntary divorce, so that one spouse may dissolve a marriage without any agreement or fault by the other. Moreover, the spouse who abrogates the marriage contract incurs no liability for the costs or consequences, creating a unique and unprecedented legal anomaly. “In all other areas of contract law those who break a contract are expected to compensate their partner,” writes Robert Whelan of London’s Institute of Economic Affairs, “but under a system of ‘no fault’ divorce, this essential element of contract law is abrogated.”
The result was to unleash precisely the moral and social chaos that it is the role of the family to control, and powerful interests were not slow to capitalize. Legal practitioners immediately began encouraging business by taking the side of the violator. Attorney Steven Varnis points out that “the law generally supports the spouse seeking the divorce, even if that spouse was the wrongdoer.” “No-fault” did not remove fault, therefore; it simply allowed government officials to redefine it however they pleased and to treat legally unimpeachable citizens as malefactors. “According to therapeutic precepts, the fault for marital breakup must be shared, even when one spouse unilaterally seeks a divorce,” observes Barbara Whitehead in The Divorce Culture. “Many husbands and wives who did not seek or want divorce were stunned to learn … that they were equally ‘at fault’ in the dissolution of their marriages.”
The judiciary was expanded from its traditional role of punishing crime or tort to refereeing private family life and punishing personal imperfections. One could now be summoned to court without having committed any legal infraction; the verdict was pre-determined; and one could be punished for things that were not illegal. Lawmakers created an “automatic outcome,” writes Judy Parejko, author of Stolen Vows. “A defendant is automatically found ‘guilty’ of irreconcilable differences and is not allowed a defense.”
Though marriage is a civil matter, the logic quickly extended into the criminal, including a presumption of guilt against the involuntarily divorced spouse (“defendant”). Yet formal due process protections of criminal proceedings did not apply, so forcibly divorced spouses became quasi-criminals not for recognized criminal acts but for failing or refusing to cooperate with the divorce by continuing to claim the protections and prerogatives of family life: living in the common home, possessing the common property, or—most vexing of all—parenting the common children.
Following from this are the horrendous civil liberties violations and flagrant invasions of family and individual privacy that are now routine in family courts. A personalized criminal code is legislated by the judge around the forcibly divorced spouse, controlling their association with their children, movements, and finances. Unauthorized contact with their children can be punished with arrest. Involuntarily divorced parents are arrested for running into their children in public, making unauthorized telephone calls, and sending unauthorized birthday cards.
Cardinal Kasper’s agenda ignores all this and will certainly make it worse. Indeed, what he is demanding is a kind of no-fault church discipline, which will debase the Eucharist and church membership, just as no-fault divorce has already debased marriage and the secular justice system, by allowing clergy to redefine sin and cheapen repentance: “If a divorced and remarried person is truly sorry that he or she failed in the first marriage … can we refuse him or her the sacrament of penance and communion?” But sincere repentance requires an effort to rectify the harm caused by one’s sin. Does the Cardinal’s definition of “truly sorry” entail undertaking to compensate one’s former spouse for being summarily evicted from his or her home, or deprived of his children, or serving jail time for unauthorized parenting or trumped-up accusations of “child abuse” or “domestic violence” that are now routine in divorce proceedings? Does it include compensating one’s children for depriving them of a father throughout their childhood? These are the realities of modern divorce, not the sanitized understanding being presented by the Cardinal.
But perhaps the most explosive question: Why is the Church not willing to sort out the difference, both in its doctrine and in each individual case? Is it because the distinction between justice and injustice—central to the Gospel itself—would force the Church to confront the injustices perpetrated by a state that has dangerously overstepped its authority and the Church’s own failure to act as the society’s conscience on a matter involving its own ministry?
For the Church is simply following the politicians. In contrast with same-sex marriage, abortion, and pornography, politicians and even self-described “pro-family” groups studiously avoid challenging divorce laws. “Opposing gay marriage or gays in the military is for Republicans an easy, juicy, risk-free issue,” Gallagher writes. “The message [is] that at all costs we should keep divorce off the political agenda.” The exception proves the rule. When Pope John Paul II spoke out in January 2002—calling divorce a “festering wound” with “devastating consequences that spread in society like the plague”—he was attacked not only from the left but also by conservatives like Tunku Varadarajan in the Wall Street Journal.
Likewise, this power grab by ideologues and state functionaries at the expense of the family and private sphere of life was met by the churches with silence. Here is a sacrament consecrated by the Church, vowed before God and witnessed by the congregation. The state comes along and simply tears it up, and the Church mounts no serious response.
In the showdown that never took place over sexual morality and the supervision of private family life, this was the moment the two jurisdictions were forced into a direct confrontation and the state simply and decisively told the Church who is boss. From the moment that the Church failed to inform the state that it could not simply countermand God’s covenant governing the family, the Church has been little more than an ornament in marriage and therefore in the lives of most people.
Marriage is today the most critical interface of church and state. Whoso controls marriage governs society, not least because it becomes “the hand that rocks the cradle.”
This rivalry is not apparent in the terms by which marriage is contracted and consecrated. Here church and state cooperate quite effortlessly: a ceremony, a signature.
Where the power struggle ensues is in the terms by which a marriage can be dissolved, and it was the Divorce Revolution that precipitated the battle that the Church refused to fight. The Church, along with its Protestant counterparts, ceded to the state the authority to dissolve marriages at its own pleasure and on its own terms and to erect a regime of governmental micromanagement over the private lives of the contracted parties, innocent as well as guilty—all without scrutiny or objection by these churches who consecrated the supposedly sacred union.
Far from upholding a sacred covenant, the churches, both Catholic and Protestant, are thus parties to a fraudulent contract. They have allowed their marriage ministry to become a bait-and-switch, luring unsuspecting parties into a supposedly binding and lifelong union, where they are then sitting ducks for state functionaries to come along and simply tear up the covenant and seize control over their lives and children. And the state tears up not only the secular contract, but the covenant between the spouses, the congregation, and God. The state’s edict countermands the churches’ covenant and with it the churches’ entire authority. With the churches’ acquiescence, the state’s officials put God in His place.
However impeccable the churches’ doctrine, and whatever verbal lamentations they have expressed over divorce “culture,” what the churches have not done is resist the state’s claim to monopoly control over the terms of divorce and to supervise the private lives of the forcibly divorced: the churches have never raised their voices against the state’s usurpation of power; they have never defended innocent victims of the unilateral divorce injustice or interposed themselves between the state and innocent spouses; they have never challenged state functionaries taking the homes and children of innocent people; they have never gone to court to see that justice is done to the involuntarily divorced; they have never campaigned to change the laws governing divorce or prevent the enactment of more; and they have never even discussed the possibility of threatening to not consecrate marriage covenants until the state stops unilaterally tearing them up.
This is demanding a lot from the churches and all of us. But less existential confrontations with the state faced churchmen like Ambrose and Becket and Fisher, and nothing less is required if the churches expect to withstand the crisis posed not only by figures like Cardinal Kasper but also the larger radical sexual regime: same-sex marriage, abortion-on-demand, sex education, Obamacare, plus the creeping criminalization of parents and others who dissent, including ordinary Christians.
Divorce is where Christians can and must draw a line and launch a vigorous counterattack that will enlist stakeholders from secular society: ordinary citizens who can at last be brought to realize why the Church and God must have a central place in both our public and private lives if we are to have any private lives at all.
Stephen Baskerville is IAI’s Senior Fellow in Political Science and Human Rights. He is Associate Professor of Government at Patrick Henry College and Research Fellow at the Howard Center for Family, Religion, and Society and at the Independent Institute.
This article was originally published on Crisis Magazine.
The opinions published here are those of the writer and are not necessarily endorsed by the Institute.
[Address to the Annual Spring Meeting of the Committee for Monetary Research & Education Union League Club, New York City, 17 May 2012]In his State of the Union Message to Congress of 11 January 1944, President Franklin D. Roosevelt warned that[w]e cannot be content, no matter how high th[e] general standard of living may be, if some fraction of our people—whether it be one-third or one-fifth or one-tenth is ill-fed, ill-clothed, ill-housed, and insecure.
This Republic had its beginning, and grew to its present strength, under the protection of certain inalienable political rights—among them the right of free speech, free press, free worship, trial by jury, freedom from unreasonable searches and seizures. They were our rights to life and liberty.
As our Nation has grown in size and stature, however—as our industrial economy expanded—these political rights proved inadequate to assure us equality in the pursuit of happiness.
We have come to a clear realization of that fact that true individual freedom cannot exist without economic security and independence. “Necessitous men are not free men.” People who are hungry and out of a job are the stuff of which dictatorships are made.
In our day these economic truths have become accepted as self-evident. We have accepted, so to speak, a second Bill of Rights under which a new basis of security and prosperity can be established for all regardless of station, race, or creed.
Among these are:
The right to a useful and remunerative job in the industries or shops or farms or mines of the nation.
The right to earn enough to provide adequate food and clothing and recreation.
The right of every farmer to raise and sell his products at a return which will give him and his family a decent living.
The right of every businessman, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home or abroad.
The right of every family to a decent home.
The right to adequate medical care and the opportunity to achieve and enjoy good health.
The right to adequate protection from the economic fears of old age, sickness, accident, and unemployment.
The right to a good education.
In Roosevelt’s mind, all of these “rights” were to be secured by positive governmental programs, implemented through a vast New Deal bureaucratic welfare state. Actually, it would have been more accurate to call this apparatus a “permanent dependency state”, necessarily tending towards an economic totalitarian state, because everyone entitled to or desirous of such “rights” would look to public officials to fulfill them, and therefore would support an ever-more-powerful central government capable of performing whatever functions were necessary to that end.
And by promising an ever-increasing cornucopia of benefits, public officials would guarantee themselves a “permanent incumbency state” under the slogan “spend and spend, elect and elect”.
To accomplish that, however, the disposable income of the General Government would have continuously to increase.
Although to some degree this could be effected through taxation—Harry Hopkins’ version of the slogan being “tax and tax, spend and spend, elect and elect”—the inevitable resistance by taxpayers, or their economic destruction, would impose an upper limit on the ability to “spend and spend, elect and elect”.
In the final analysis, for the scheme to work, the General Government would have to commit to ever-increasing borrowing from the banks, and therefore to ever-increasing inflation, or to the emission of Treasury notes directly—the slogan becoming “tax and tax, borrow and borrow, inflate and inflate, spend and spend, elect and elect”.
The self-evident problem with this scheme, though, is that it is self-destructive. And not only must it destroy itself, but also it will inevitably drag down society as a whole with it.
As dark as this picture is, however, it takes only a little intelligence, insight, and imagination to visualize these “rights” in quite a different light. For every one of them would be recognized in a truly free society, too. Not, however, as “economic rights”, except derivatively. Rather, they would be “political rights”—as the Declaration of Independence described them, the “unalienable Rights” to “Life, Liberty, and the pursuit of Happiness”.
They would be “rights” in the sense that no individual and no group either in private station or in public office would be allowed to interfere with anyone else’s otherwise legitimate attempts to secure these benefits for himself, by dint of his own efforts or in voluntary cooperation with others of like mind. The government’s only rôle would be to protect freedom of speech, private property, and freedom of contract, and to suppress every sort of tortious and criminal behavior that interfered with the effectuation and enjoyment of these “rights”, whether perpetrated by private parties or by public officials —especially monetary, banking, and other financial frauds, which interfere with every one of these “rights”. Under such circumstances, every one of these “rights” would be perfectly capable of achievement in a stable, prosperous, and free society.
But, in point of fact, under neither definition have these “rights” been attained in America.
They have not been, and could never be, secured as “economic rights” in Roosevelt’s sense of that term and by the means Roosevelt proposed, because the General Government is incompetent to provide them. And although they could have been guaranteed as “political rights” by the means the Constitution provides—primarily, its limitations on the powers of the General Government—they have not been achieved, because rogue public officials and private special-interest groups have proven sufficiently competent to interfere with the exercise of every one of them. What does the record show? Failure upon failure:
The promise: “The right to a useful and remunerative job in the industries or shops or farms or mines of the nation.”
The reality: A large proportion of the most “useful and remunerative job[s]” have been exported to far-away lands; and what is left of the national economy is beset with massive unemployment, underemployment, and downright wasted employment.
- The promise: “The right to earn enough to provide adequate food and clothing and recreation.”
The reality: Instead of “earn[ing] enough”, or even “earn[ing anything]”, more and more Americans every day must fall back on welfare, food stamps, and other forms of public assistance, consume their meager life savings, or sink deeper and deeper into debt.
- The promise: “The right of every farmer to raise and sell his products at a return which will give him and his family a decent living.”
The reality: Families are being systematically driven off the land by oligopolistic corporate agribusinesses.
- The promise: “The right of every businessman, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home or abroad.”
The reality: Domestic businessmen are confronted with ever-more-destructive unfair competition from foreign manufacturers who do not have to contend with America’s minimum wages, labor laws, environmental laws, health and safety laws, unemployment insurance, and so on.
- The promise: “The right of every family to a decent home.”
The reality: The housing market has been Ponzified, riven with fraud, and thrown into chaos.
- The promise: “The right to adequate medical care and the opportunity to achieve and enjoy good health.”
The reality: The proven unworkability of the General Government’s previous interventions in America’s health-care industry is now being employed by politicians and special-interest groups as an excuse to ram down the people’s throats a full-fledged fascistic system that both presents a clear and present danger to every common American’s physical and mental well being, and promises to be financially unsustainable to boot.
- The promise: “The right to adequate protection from the economic fears of old age, sickness, accident, and unemployment.”
The reality: The jungle drums in the Disgrace of Columbia are beating out the message that Social Security must be gutted—and, with it, what little financial security most retirees have.
- The promise: “The right to a good education.”
The reality: the biggest and cruelest hoax of all, because it affects the future more than everything else. America’s elementary and secondary schools cannot teach children to read, write, and figure, let alone to think critically—but they can fill their heads with every form of sexual perversion imaginable. Colleges and universities are the last bastions of unadulterated, unreconstructed, unapologetic Marxism, radical feminism (a variety of Marxism in which the gender struggle substitutes for the class struggle), apocalyptic environmentalism, blatant racism, Keynesianism, and every other socially destructive “ism” known to modern man. In any event, even graduates who have mastered some useful discipline cannot find jobs in their areas of specialization, but are saddled with tens of thousands of dollars of debt for student loans.
In his 1944 State of the Union Address, Franklin Roosevelt concluded that: “All of these rights spell security.” If he was correct then, what does the utter absence of these rights today spell?
Americans had better come to grips with that question, and soon—because, some sixty-eight years after Roosevelt made his pronouncement, America has a full-fledged Department of Homeland Security, yet common Americans find themselves in the worst state of economic, political, social, moral, and even physical insecurity this country has ever experienced.
Perhaps, though, we cannot rightfully blame Franklin Roosevelt for this mess, except as an accessory after the fact. The real blame must be laid at the doorstep of Woodrow Wilson’s Administration. And specifically at the doorstep of the Federal Reserve System, because the unworkable monetary and banking systems foisted on this country in 1913 lie at the root of all of these economic and political problems.
To conclude that this disgraceful state of affairs is the result of monetary, banking, and other allied financial fraud, facilitated at every step by legalistic sleights-of-hand and political chicanery, is not to oversimplify the problem, but instead to describe its genesis in the most focused fashion possible. For, in the final analysis, the effectuation of every one of these “rights” in their meaningful sense is tied to the existence of sound money, of a rational price structure, of protection for participants in the free market against financial fraud, and therefore of a monetary and banking system that:
(i) provides the people with a monetary unit the substance and supply of which is not subject to political manipulation;
(ii) absolutely separates bank and state; and therefore
(iii) strictly limits the powers of the General Government, so that it is impossible for public officials to employ the scheme of “tax and tax, borrow and borrow, inflate and inflate, spend and spend, elect and elect”.
Conversely, the frustration of these “rights” is assured by the emission of unsound “political money”, by a nonrational price structure, by immunity in law or simply in fact for the perpetrators of massive financial fraud, by integration of bank and state, and ultimately by a totalitarian central government working hand in glove with private bankers and other speculators. And this is true whether or not the “political money” purports to be redeemable in silver (as it was prior to 1968) or in gold (as it was prior to 1933 domestically and 1971 internationally), or is unabashedly fiat (as it is today).
To be sure, sometimes it is difficult to differentiate the chicken from the egg. Has America suffered economic failure because of political failure, or political failure because of economic failure? The answer is codetermination: Economic and political failure have marched in lockstep, because the same culprits have been responsible for both.
The Federal Reserve System and its clients and henchmen, both economic and political, constitute a classic, indeed a quintessential, “faction”. As defined by James Madison: “a faction” is “a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community”.
Economically, the big banks and financial houses are, first and foremost, engines and agents of speculation, peculation, and economic predation. They are not concerned with “the general Welfare”, only with their “bottom lines”.
Politically, they are engines and agents of subversion. They do not seek to aid the General Government in the general interest, but instead to coöpt, coerce, and control that government in order to maximize and protect the profits of their operations, while shifting the losses to whomever else can be made to bear them. The General Government has become a compliant component of their business plans. And, through the operations of that government, the American people have become unwilling servants of those plans, too—and necessarily so, because the government has no resources it does not take from the people.
The bankers and their allies have been at this game since the very birth of this country—with the Bank of North America, the first and second Banks of the United States, and the National Banking System of the Civil War. Throughout the Nineteenth Century, however, Americans failed to follow the prudential rule that, when dealing with factions, never listen to what they say about themselves, but always observe what they do for themselves and to everyone else.
This failure become critically important after 1913, because the Federal Reserve System goes far beyond mere factionalism.
The Federal Reserve System is specifically a corporative-state arrangement: basically a governmentally sponsored cartel of private bankers and speculators that exercises authority delegated under color of law supposedly to serve both public and private interests in the area of currency and credit. What has become obvious today, however, and should always have been self-evident from the nature of all such systems—particularly in the field of money and banking where the potential for redistribution of wealth is greatest—is that the private interests of the operators of the cartel and their political allies inevitably take precedence over the public interest in the general welfare of common Americans. For part two click below.
- To be sure, these were not Roosevelt’s own, original ideas, but instead derived from his formative experiences in the Woodrow Wilson Administration. See Thomas Fleming, The New Dealer’s War: F.D.R. and the War within World War II (New York, New York: Basic Books, 2001), at 326 & note 39.
2. The Federalist No. 10.
3. U.S. Const. preamble.
4. Act of 16 June 1933, ch. 90, 48 Stat. 195.
5. A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 537 (1935).
6. Actually, this “Bush Doctrine” is nothing new. It is merely the logical expansion of old “Brezhnev Doctrine” now embossed with the Stars and Stripes rather than the Hammer and Sickle. Under “the Brezhnev Doctrine”, the Soviet Union claimed the right to invade any country among its satellites that deviated too far from the Communist Party line as enunciated in Moscow. Under “the Bush Doctrine”, the United States claims the right to impose crippling economic sanctions upon, to ring with military bases, and if those tactics do not work then to launch ersatz “wars of national liberation”, to bomb, and even to invade, any country, without distinction, that refuses to subordinate its economy to the dictates of the Financial Axis that runs from London, through New York City, to the District of Columbia.
7. Recorded on film by Leni Riefenstahl in “Triumph des Willens”.
8. 2009—DHS-ICE entered into a contract for 200,000,000 rounds of .40 S&W ammunition over the ensuing five years. 2011—FBI awarded a contract for up to 100,000,000 rounds of .40 S&W ammunition over the ensuing five years. 2012—DHS awarded a contract for 450,000,000 rounds of .40 S&W ammunition over the ensuing five years.
9. Declaration III (1899).
10. Part 2, Article 8, § 2(b)(xix).
11. This prohibition stems from the Declaration of St. Petersburg (1868).
12. See my demolition of Holder’s contentions in “Where is the Outrage?”
13. Quotations From Chairman Mao Tse-tung (Peking, China: Foreign Languages Press, 1966), at 72.
14. Observations on the Act of Parliament, commonly called the Boston Port-Bill; with Thoughts on Civil Society and Standing Armies (London, England: Edward and Charles Dilly, 1774), at 50.
Dr. Edwin Vieira is IAI’s Distinguished Senior Fellow in Jurisprudence and Constitutional and Monetary Law.
This article was originally published originally published on July 2, 2012, on NewsWithViews.
The opinions published here are those of the writer and are not necessarily endorsed by the Institute.
US News Director Robert O’Hara interviews IAI’S fellow and professor from Patrick Henry College, Stephen Baskerville on the topic of fathers’ rights and the crisis in the American family courts.
This article, published nationally under the title “History and the Judiciary” in many venues as one of the late Paul Weyrich’s syndicated columns, including TownHall.com, WorldNetDaily, NewsWithViews, Orthodoxy Today, and RenewAmerica, then widely reposted and distributed on other websites and republished in WND’s Whistleblower magazine, was ghost-written by John Haskins at Weyrich’s request near the end of his long career as a major architect of the “Reagan revolution” and the modern conservative movement. (The first paragraph and several edits later in the text are Weyrich’s.)
Paul M. Weyrich
August 2, 2008
I am occasionally referred to as a “founder of the modern conservative movement.” Such an honor places upon me and others to whom such a description applies a special duty to warn our fellow citizens. Americans today are witnesses to the realization of the great fear of our Founding Fathers: the passing away of government “of the people, by the people, for the people,” as President Abraham Lincoln stated, in the United States of America. With respect to the courts, we need a revival of the rule of law based upon the constitutional principles laid down by those who founded this nation.
Our forefathers gave their lives to liberate us from the rule of a British Parliament unelected by the American colonists:
Governments are instituted among Men, deriving their just powers from the consent of the governed…. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government…. (Emphasis added.)
The grand formalities of American election rituals hide a glaring fact: Americans can no longer claim that we are our own rulers in every circumstance in which we are empowered to be. Regardless of our votes, the defining judgments in our collective and personal destinies often are made by persons whom the American people have not elected to rule.
We gave judges their robes and gavels so that they might resolve specific disputes between specific plaintiffs and defendants. We never gave them authority to issue commands to our elected lawmakers, forcing us down roads which we have not chosen to travel. Judges have no constitutional authority to make laws or to amend our national and state constitutions. They have no authority to redefine words and concepts in our laws to mean what they and their ideological partisans wish for them to mean.
To Americans of previous generations this was obvious and fundamental. But for many in America today, this is meaningless, a mere technicality: judges are supreme because, well, because they just are.
When several judges opined that there ought to be no more prayer in American schools, lawyers, politicians and journalists told us that after three centuries of prayer in our schools, judges had suddenly “outlawed” it. Court opinions interpreting law and social custom magically became the law itself.
After three centuries of Americans exercising their right to control their communities as citizens and to keep pornography out of public view, several judges opined that the Founding Fathers had given pornographers a right to pollute us and our children, a right that does not exist in the United States Constitution. They put us on a course that has almost obliterated the ideal of fidelity of body, mind, imagination and the heart, upon which marriage, family and child-rearing are built.
Nevertheless, lawyers, journalists and politicians announced that this opinion was to be the new law though it had no basis in the Constitution or in any law authorized by the American people via their chosen lawmakers.
Likewise, judges — acting on behalf of a tiny, anti-constitutional, self-styled cultural “elite” dedicated to turning America into an ideological utopia — opined that the American people may neither protect children from violent murder in their mother’s womb, nor outlaw sodomy, nor restrict their civic blessing upon marriage to nature’s definition of it, nor ensure that parentless children are placed with parents as nature defines them: one father and one mother.
Nor should I forget to mention judicial disregard for centuries of customary, legal and constitutional protection of private property in order to provide legal sanction for powerful, corrupt politicians lusting after other men’s land or buildings. “Take what you please,” they said, in essence. And this was now “the law.” One hand washes the other.
Many of us received in shock and sadness the Goodridge v. the Department of Public Health of Massachusetts opinion on homosexual marriage. But why do self-styled “conservatives,” lawyers, politician and pundits among them, spread the assertion that judges have powers that the American people have never given them?
The truth is that the ruthlessly enforced illusion of judicial supremacy did not merely empower judges and disenfranchise the American people. It made journalists, lawyers and clever politicians more influential culturally. Most, after all, are of the same ideological bent as many judges. And those who were not, the “conservatives,” played within the new rules: judges’ opinions are “the law” in the United States of America.
If Americans paid attention, understood what is at stake and agreed upon the solution, their long-term strategy would require:
- a string of primary victories by candidates who fully grasp the fact that judges have no authority to change our laws and who aggressively will oppose all claims to the contrary;
- an unbroken series of triumphs by such constitutionalist candidates in general elections, year after year;
- an unbroken series of nominations of judges who will interpret the law and will reject the noxious and absurd myth that previous court opinions are “the law of the land”; (Presidents Ronald W. Reagan and George H. W. Bush gave us activists such as Sandra Day O’Connor, Anthony Kennedy and David Souter!);
- an unbroken series of Senate confirmations of originalist judges;
- unwavering constitutionalism by originalist judges in their years on the bench, withstanding daily assault by infuriated cultural “elites” who grew accustomed to using legally void and impotent court opinions as bulldozers to deceive and enslave Americans via a-moral, anti-constitutional and increasingly tyrannical judicial delusions.
Not a single signer of the Constitution (or of the Declaration of Independence) would have taken seriously the purportedly “conservative” view today that to restrain judges we need to replace them through attrition over decades.
That view, in my opinion, guarantees a victory of the far left because it implies that the judicial branch is the final authority on the law.
In his book and British Broadcasting Corporation series Civilization, historian Sir Kenneth Clarke noted that after the dissolution of the Roman Empire, scattered pockets of normalcy continued for a surprisingly long time. How will we know, living in such “pockets of normalcy,” when our republic has collapsed? Has it already? Are we prisoners who still think themselves free?
For the sake of this republic I urge my friends, fellow leaders and Americans emphatically to repudiate the devastating myth that judges have the power to make and redefine our laws. We should do so rapidly and forcefully before our republic is replaced by the irresistible tyranny of men and women who believe that nihilist elites should make the rules and pass them to judges for formal announcement when the time is ripe for the latest step into the post-rule of law, post-moral abyss. Otherwise our “conservatism” will continue to be merely the rearguard for subtle left-wing revolution.
The tragedy of how we have reached this point: in our desire for social acceptance and respectability among the anti-constitutional, anti-rule of law, anti-Christian, anti-family nihilist left, “conservative” elites have abandoned the core principles of our Constitution. We have flouted the warnings of the likes of Thomas Jefferson, who wrote:
“To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. …The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots.”
Alexander Hamilton was perhaps the strongest advocate of “judicial review” — the right of judges to opine on our Constitution. But an opinion on the meaning of the Constitution is merely an advisory opinion to the legislative and executive branches of government. Not even Hamilton imagined that the right to opine is a power to rule. Courts, he pointed out, intentionally have been given no means of enforcing their opinions, noting that the executive and legislative branches are not compelled to obey false or dubious opinions. Therefore, he wrote:
“The judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution. … [T]he judiciary …has no influence over either the sword or purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither force nor will….
Abraham Lincoln acknowledged that court opinions were binding upon the specific parties involved and “entitled to very high respect and consideration…by all other departments of the government.” But like the Founding Fathers, he utterly rejected the myth that judges’ opinions are the law of the land:
“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.”
In the last century cultural elites created an illusion of judicial power that would be unrecognizable to earlier Americans, lawyers and laymen. After the American Revolution, the framers of the Constitution rejected any judicial authority over the other branches of government.
I fear the conservative elites are putting the final nail in our coffin. I know these men. They mean well. They are not pursuing their view out of malice. They believe what they are doing is right. Nor do I associate myself with some of their critics who often are accusatory, judgmental and angry. I look at results, and it seems to me that proponents of the status quo are allowing the legal profession and the courts to impose moral and civil codes which cannot pass federal and state legislatures. They foolishly are handing absolute power to anti-Judeo-Christian, anti-family ideologues.
This is where the trajectory of the post-constitutional pragmatism undergirding the “conservative revolution” has taken us. The story is not yet complete, but if we continue on this trajectory we may reach the point of tyranny and persecution. History reveals this to be true.
Many of those with whom I have worked for years unwittingly are aiding the far left in the destruction of America. It is time for our presidents, governors, legislatures and prominent citizens to call the bluff of impotent judges as Jefferson did and to ask them, as President Andrew Jackson did, how they will enforce their impotent opinions. The myth of judicial supremacy cannot justify governors violating state and federal constitutions, their oaths of office and the sovereignty of the American people. Look at the way so-called gay marriage has been imposed by judicial fiat, running ruthlessly over elected legislatures and the will of the people.
The Massachusetts Constitution contains the quintessential statement of the American form of government:
“The power of suspending the laws, or the execution of the laws, ought never to be exercised but by the legislature….” (Part the First, Article XX.)
“[T]he people…are not controllable by any other laws than those to which their constitutional representative body have given their consent.” (Part the First, Article X.)
“The judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.” (Part the First, Article XXX.)
“All the laws which have heretofore been adopted, used and approved …shall still remain and be in full force, until altered or repealed by the legislature ….” (Part the Second, Article VI.)
Americans must debunk the Orwellian lie that has obliterated self-government in the United States and acknowledge Lincoln’s words at Gettysburg in 1863:
Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure…. It is for us the living…to be here dedicated to the great task remaining before us — that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion — that we here highly resolve that these dead shall not have died in vain — that this nation, under God, shall have a new birth of freedom — and that government of the people, by the people, for the people, shall not perish from the earth.
John Haskins is IAI’s Senior Fellow for the Public Understanding of the Law, Propaganda, and Cultural Revolution.
The opinions published here are those of the writer and are not necessarily endorsed by the Institute.
An open letter from leaders of the conservative grassroots
January 2, 2008
Through their silence, the elites are assisting a political cancer that has profound consequences for our children and grandchildrenWe write the following because we must oppose the deception of the American people by powerful and influential conservatives. Many in the conservative grassroots no longer trust the “conservative” media, lawyers and leaders, whom they see as serving the GOP establishment regardless of the will of the conservative base, regardless of the truth.
Most of us are not allied with any presidential candidate. But we are troubled by the unethical and Orwellian cover-up of Mitt Romney’s role in catastrophic events in Massachusetts, once the cradle of American liberty. Actions he took as governor were beyond the pale. As Romney twice explained to the homosexual “Log Cabin” Republicans, it would take a Republican to enact their agenda. (See article in homosexual newspaper Bay Windows.)
Attorneys, journalists and pundits must be fearless and selfless watchdogs of politicians and guardians of democracy. This is a sacred trust that is being defiled. Silence about ugly truths, such as the points enumerated below, is a betrayal of the lofty status we claim in a constitutional republic. Pay the price of courage. Tell America the truth.
Phony Pro-Life “Conversion”
Issue # 1. Mitt Romney established abortion as a “healthcare benefit” in his own government-run healthcare plan at $50 per abortion — after his supposed “pro-life conversion.” He created a permanent, official government role for an unelected Planned Parenthood representative on the health care board.
Issue #2. Romney’s well-timed “pro-life” conversion for the Republican primary pulled a “states’ rights” committment out of nowhere to hedge his political bets. His claim that states’ rights trump the unalienable right to life is inconsistent and unprincipled: he simultaneously opposes an amendment to protect human life, but claims to support one to preserve marriage! What happened to Romney’s committment to “states’ rights?”
Issue #3. Unforced by anyone, Romney overruled his own Commissioner of Public Health and lied about state law in order to compel Catholic hospitals to issue abortifacient pills — in violation of their freedom of religion enshrined in the United States and Massachusetts Constitutions. Using exactly the crafty political theatre he employed to cover his actions on same-sex “marriage” and homosexual adoption, Romney posed as defender of the very thing he was destroying, gallantly “asking” the legislature to create a special “religious exemption” for Catholic institutions. Even Democrat former governor Mike Dukakis publicly agreed with Romney’s commissioner of public health that state law already grants a “religious exemption.”
“Gay Marriage,” Gay Adoption and Pro-Homosexuality Propaganda In Schools
Issue #1. In another flagrant lie about the law, Romney told Catholic Charities’ adoption and foster agency they had to give children to homosexuals even when normal mother-father families were lined up to give them a home. Again, he deployed his standard smokescreen, gallantly proposing a “special exemption,” with a wink of his eye to the militantly pro-homosexuality legislature. Again, he got caught. Former governor Dukakis pointed out that the “state law” that Romney was citing as requiring gay adoption was non-existent. It was merely an executive regulation that a governor can rescind with a few strokes of his pen. Romney was apparently fulfilling secret 2002 campaign promises to Republican homosexual power brokers whose endorsement he coveted and received. He had sought no backing from social conservatives.
Issue #2. Romney says the Boy Scouts should accept homosexual scoutmasters and that homosexuals have “a legitimate interest” in adopting or producing and raising children.
Issue #3. Though Romney pretends he opposed homosexual “marriage,” he did the opposite. In 2002 he opposed a marriage amendment that would have prevented homosexual “marriage.” 120,000 citizens, including his wife, son and daughter-in-law signed the amendment petition. Romney’s militant pro-homosexuality Republican predecessor, Governor Jane Swift, and Democrat legislators openly violated the constitution to deny the citizens their right to vote on the amendment. Even the ultra-liberal Massachusetts court ruled that they were violating their oaths and the Constitution. Romney failed to oppose their subversion of the law or to defend the people’s right to amend their own Constitution.
Issue #4. Since the notorious Goodridge court opinion discovering a constitutional right to “gay marriage,” Romney has methodically lied about the judges’ legal authority and his own legal duty to enforce the Constitution. As professor of jurisprudence Hadley Arkes pointed out, under the state Constitution, the court has no jurisdiction over marriage law. An opinion issued without jurisdiction is legally void and cannot be “enforced.” Romney also knew that the same judges had recently admitted they have no power over the legislature or governor.
The Legislature never “obeyed” the judges by changing the marriage statute to legalize “gay marriage.” Under the state constitution that was the end of the line. The court neither ordered nor even suggested any intervention by the governor. Many lawyers and law professors (including Hugh Hewitt: http://massresistance.blogspot.com/2007/12/hugh-hewitt-told-romney-to-defy-mass.html ) told Romney to ignore the unconstitutional Goodridge opinion and embarrass the judges. Mysteriously, Romney rejected their advice. Why? The New York Times finally revealed four years later that, to win a coveted endorsement, Romney secretly promised the homosexual Log Cabin Republicans in 2002 that he would not defend the constitution against an illegal attempt by the judges to sneak same-sex “marriage” past the voters. (See New York Rimes article here).
When the Legislature did not legalize homosexual “marriage,” to fulfill his secret promise, Romney claimed that the judges had. This is a blatant lie plainly refuted by the state constitution Romney swore to uphold! He quickly found willing “conservative” lawyers, pundits and “pro-family leaders” to back him up. Rather than challenge the motives, integrity and “expertise” of their own friends and colleagues, most of the conservative establishment suddenly went silent. Ignoring his oath to faithfully enforce the statutes, Romney ordered officials to violate the marriage statutes and perform homosexual “marriages.” His Department of Public Health illegally bypassed the legislature by changing the marriage certificates from “husband” and “wife” to “Party A” and “Party B.”
Romney gave orders that illegally usurped the exclusive constitutional authority of the Legislature, as proven in this devastating “Letter to Governor Mitt Romney from Pro-Family Leaders.” (www.massresistance.org/docs/marriage/romney/dec_letter/letter.pdf). He violated multiple Articles of the Massachusetts Constitution, including one of the most vital principles of American government, which John Adams stated more forcefully than anywhere else in American law:
“In the government of this commonwealth…the executive shall never exercise the legislative and judicial powers, …the judicial shall never exercise the legislative and executive powers, …to the end it may be a government of laws and not of men. – Article XXX, Part The First
We deplore the glaring refusal of the “conservative” establishment to face the implications of a devastating article by a leading constitutional scholar, illuminating why pro-establishment attorneys have covered up Romney’s unconstitutional actions:
“The deeper failure must go to the man who stood as governor, holding the levers of the executive. And if it is countdown for marriage…it is countdown also for Mitt Romney, whose political demise may be measured along the scale of moves he could have taken and the record of his receding, step by step… [I]t became clear that even conservative lawyers had come to incorporate, and accept, the premises that gave to the courts a position of supremacy in our constitutional schemes.” — Hadley Arkes, Professor of Jurisprudence, Amherst College ( The Missing Governor, National Review Online May 17, 2004 )
We equally deplore the refusal to acknowledge the obvious truth in highly respected conservative attorney Phyllis Schlafly’s assessment:
“Massachusetts public officials … are groveling before the four judges… (Romney) said: ‘We obviously have to follow the law as provided by the [Court] and … decide ‘what kind of statute we can fashion which is consistent with the law.’
But what ‘law’? There is no law that requires or even allows same-sex marriages.” — Phyllis Schlafly ( It’s Time To Rebuke The Judicial Oligarchy (EagleForum.org, Dec. 3, 2003) )
Schlafly was right, as any honest and competent lawyer knows. The Massachusetts Constitution powerfully refutes Romney’s entire story that the judges changed marriage law and forced him to give unconstitutional orders:
“[T]he people of this commonwealth are not controllable by any other laws than those to which their constitutional representative body have given their consent.” Article X, Part the First of the Massachusetts Constitution
“The power of suspending the laws, or the execution of the laws, ought never to be exercised but by the legislature…” Article XX, Part the First of the Massachusetts Constitution
Mitt Romney created homosexual “marriage.” His “conservative” legal experts are aggressively covering up both his role and the plain language of the Supreme Law of the Commonwealth of Massachusetts.
Issue #5. Though Romney admitted the Goodridge opinion was not based on the Constitution and that the judges had exceeded their power, he opposed a citizen’s drive to remove the four rogue judges who violated their oaths. ( http://massresistance.blogspot.com/2007/12/is-romney-working-with-log-cabin.htm )
Issue #6. Though Romney says same-sex “marriage” will damage religious freedom and harm children, who need both a mother and a father, he personally issued more than 190 special one-day certificates to allow homosexual “marriages” to be performed by legally unqualified persons. He claims he was “just applying the marriage statutes evenly.” But As Phyllis Schlafly reminded America, and as even the outlaw Goodridge judges admitted, the statutes do not allow homosexual “marriages,” despite Romney’s false claim that the court “legalized” homosexual “marriage. Moreover, a governor is not obliged to issue any special marriage certificates to anyone. Since Romney says same-sex “marriage” will harm children and erode religious freedom, why did he violate the marriage statutes and issue hundreds of special permits? ( www.massresistance.org/docs/marriage/romney/record/ )
Issue #7. As governor, to please Massachusetts’ militant homosexual groups, Romney aggressively BOOSTED government funding for pro-homosexuality indoctrination, starting in kindergarten. He refused to defend schoolchildren and parents’ rights against this indoctrination. He refused to order his education officials to obey the law guaranteeing that parents’ can protect their children from sexual brainwashing. ( www.massresistance.org/docs/marriage/romney/record/ ) This is a continuation of his views since 1994 when he opposed congressional efforts to protect children by banning federal funding to public schools that encourage “homosexuality as a positive lifestyle alternative.” His deference to militant homosexual groups’ “right” to indoctrinate other people’s children was jaw-dropping:
“I think that’s a dangerous precedent in general. I would have opposed that. It also grossly misunderstands the gay community by insinuating that there’s an attempt to proselytize a gay lifestyle on the part of the gay community. I think it’s wrong-headed…” ( See Boston.com article.)
With their silence about the illegal actions and toxic legacy of Mitt Romney, the elites are assisting a political cancer that has profound consequences for our future. If anyone has convinced themselves that so-called “same sex marriage” is a fringe issue and not a grave threat to the rule of law and to children they should read Maggie Gallagher’s stunning article “Banned in Boston.” They should also investigate the pro-homosexuality indoctrination of Massachusetts children (“It’s 1984 in Massachusetts – And Big Brother Is Gay” http://inter-american.org/commentary/157-its-1984-in-massachusetts-and-big-brother-is-gay.html ) which had been covert, but in the aftermath of Romney’s illegal orders imposing homosexual marriage, is swallowing up parents’ most fundamental right to protect their children and control their moral education. To remain silent about the re-engineering of the human family and child psychology, and the active and dishonest role Romney has played, is a dereliction of our highest duties.
We are among those who believe that same-sex “marriage,” homosexual adoption and pro-homosexuality indoctrination of schoolchildren hasten the decline of Western Civilization in its most crucial aspects, whether the elites face that and comprehend it or not. Yet many who have the greatest obligation are cowering in the shadows or even aiding the deception. Our silence is a fatal abdication of duty to our children and future generations, a breech of faith. It is a betrayal of the honor of young soldiers dying overseas for principles that we decided in our hearts long ago require no profound sacrifice from the elites.
The truth is this: Mitt Romney’s fictional defense of natural marriage, childhood innocence, life in the womb and constitutional governance is sustained only by our silence in the face of overwhelming propaganda. Edmund Burke famously said “All that is necessary for evil to triumph is for good men to do nothing.”
Dante went further: “The hottest places in hell are reserved for those who in times of great moral crises maintain their neutrality.”
It is telling of today’s “conservatism” — an endless regression of sophist ironies and nuances, dissolving, in the end, into absolutely nothing at all — that dire warnings from ancient voices seem like faint, distant echoes bouncing absurdly against rock walls far below our feet, beneath a precipice that we scaled long ago in the conceits of our modern conservative minds.
To continue in silence or in support of the craftiness and ruthless ambition of Willard Mitt Romney betrays generations past, present and future, including our own children and grandchildren.
Pay the price of courage, friends. Tell America the truth.
Judge Ned Kirby (ret.), former Assistant Minority Leader, Massachusetts Senate
Atty. Edgar Kelley, former Assistant United States Attorney, Massachusetts District
Ray Neary, Director, Pro-Life Massachusetts (former President, Massachusetts Citizens for Life)
John O’Gorman, Member of the Board of Directors, Massachusetts Citizens for Life
John Haskins, The Parents’ Rights Coalition
Gregg Jackson, Co-host, “Pundit Review,” author: “Conservative Comebacks to Liberal Lies,” contributor, TownHall.com,
William Cotter, President, Operation Rescue: Boston*
Brian Camenker, President, MassResistance
Mark Charalambous, Spokesman, CPF-Fatherhood Coalition, Massachusetts
Amy Contrada, MassResistance blog
Dr. William Greene, President, RightMarch.com
Dr. Ted Baehr, Chairman, Christian Film and Television Commission
Linda Harvey, President, Mission America
Gary Glenn, President, American Family Association of Michigan*
Janet Folger, President, Faith2Action
Michael Heath, Executive Director, Christian Civic League of Maine *
Peter LaBarbera, President, Americans for Truth*
Dianne Gramley, President, American Family Association of Pennsylvania
Nedd Kareiva, President, Stop the ACLU Coalition
Phillip Magnan, President, Biblical Family Advocates
Rev. Earle Fox, D. Phil, (Oxford), President, Road to Emmaus, School of Judeo-Christian Apologetics
Janet Folger, author, columnist, President, Faith2Action
Michael W. Calsetta, Former President, Conservative Democratic Alliance
Allyson Smith, Director, Americans for Truth – California
Atty. “Robert Paine,” author: The Governor’s New Clothes; How Mitt Romney Brought Same-Sex Marriage To America
* For identification purposes only. All persons are signing as concerned private citizens. This information is solely for educational purposes and not in support of any candidate.
The irrefutable proof that Romney’s “conservative” lawyers are lying to America:
“Letter to Governor Mitt Romney from Pro-Family Leaders.”
“Governor’s New Clothes; How Mitt Romney Brought Same-Sex Marriage To America,” by Robert Paine, Esq. http://robertpaine.blogspot.com/2006/06/governors-new-clothes-how-mitt-romney_17.html
The most thorough documentation of Mitt Romney’s record anywhere is at:http://massresistance.org/romney/
Our governing elite punishes unvarnished clarity about our Constitution. Intellectual honesty, for lawyers, schoolteachers, psychologists, professors and actors, is costly. Most lie low or join the enforcers. Surely even Roberts, Scalia, and Alito see the gap between them and the Founding Fathers, for whom precedent was impotent against the Constitution.
Absurd though it is, only “constitutional” conservatives honor precedent. The Liberal “mainstream” savors precedents they’ve shot down — or will next chance. Their favorite rulings violate centuries of precedent. But the obvious is hard to see, especially as monumental, abstract questions are addressed in isolation from thoughts of personal advancement. The realm of the mind and methodology that do this are not the pragmatic part that wins court cases, campaigns, and useful friendships. The former withers when neglected for the latter. Even “all star” conservative constitutionalists steer a careful course between the Constitution and what the establishment will tolerate.
Righteous refinement obliges conservatives (holy and secular) to treat these points as uncouth. They are not. They address why Republicans are winning elections and “conservatives” are losing the Culture War, waiting for strict constructionists to fix everything. If we want to preserve for our children what was handed to us we’ll need to stop describing things in grays that are actually black and white.
Let’s drop the talking points about “conservative,” “constructionist” and “originalist” nominees. Such language obscures what’s going on. These nuances are a polite way of pretending that the mainstream in law and government interprets the Constitution differently than we do. No. They are oblivious to the actual content of the Constitution, or they are anti-constitutional. A polite term would be “post-constitutional.”
If Ginsburg, Souter, and friends have a “theory” of constitutional interpretation, they’re keeping it to themselves. When they shake the foundations of the earth from their bench it is neither theory, nor constitutional, nor interpretation. They are, wrote Jonah Goldberg after one heinous ruling, “making it up as they go along.”
We could also call this school of jurisprudence “striking down the Constitution.” “Interpreting” is not “striking down.” Opposite concepts. Conservatives desperately need to call things what they are.
While we’re at it, Roe v. Wade is not “bad law” or “settled law” or any other kind of law. It’s a court opinion on one case. Calling it “law” is a way of reassuring Chuck Schumer that he is a direct spiritual descendant of the Founding Fathers and Justice Thomas is not.
Signers of the Declaration and the Constitution and justices until FDR’s time would cringe to hear constitutionalists call rulings “law” — binding though illegal. Citizens and officials are to reject unconstitutional rulings. Jefferson, Madison, and Lincoln did, citing their sworn oath. It is no accident that judges have no army.
If constitutions count, homosexual marriage remains illegal in Massachusetts. John Adams’s constitution says explicitly the people are “not bound” by any law not ratified by their Legislature. Four Boston judges struck down a constitution that stood in their way — one they’ve sworn to uphold. The word “treason” comes to mind — a strong word that Liberals would use lustily if they could, but then the Left is all about winning and conservatives are about slowing them down.
Has “conservative” governor Mitt Romney refused to enforce a ruling dissenting justices and Harvard law professors say is bogus? His oath compels him to refuse the court its pleasure. He pleads impotence. Do constitutionalists demand that the outlaw justices resign? Silence. Or Romney? No, they fancy him in the White House. At what point will “constitutionalists” stop siding with the establishment against the Constitution?
CONSERVATIVES JUST don’t get it. In a republic judges don’t get to make laws and others are sworn to stop them when they try. Yet we speak as if this is splitting hairs. Jefferson wrote that an unconstitutional ruling is null and void. What part of “void” can’t we understand? Why are “conservative” presidents, governors, legislatures, mayors, sheriffs and school committees siding with Laurence Tribe against Jefferson and Lincoln?
Law schools haven’t taught the Constitution for years. They teach precedent. Conservatives dignify mockery of the Constitution by pretending it’s a matter of dueling legal theories. “We respectfully disagree with the court’s interpretation…”
No. That ain’t interpretation. “Impeachable” is what it is — prestigious degrees notwithstanding. Respect swindlers in high places?
Subjecting Americans to foreign laws, as our Supremes have proudly done, is an impeachable act. That needs no debate and should have been unanimously stated by respectable conservatives when the Supremes announced that we are under nihilist European rulers whom we did not elect and cannot impeach.
We need no nuanced legal taxonomy to tell the White House what we expect in our judges. There’s an oath involved in the job. “Support and defend” does not mean “subvert and pretend.” If that excludes everyone in what liberals call the “mainstream,” fine. If the mainstream is post-constitutional we’ll take someone outside the mainstream.
Lifelong legal conformists need not apply. We want someone who can read the instruction book and for whom a solemn oath does not expire when their fanny hits the bench.
John Haskins is IAI’s Senior Fellow for the Public Understanding of Law, Propaganda and Cultural Revolution..