Académique Documents
Professionnel Documents
Culture Documents
Outline:
B. Quiz Questions
C. Senate testimony
Amendments without such a clause enact a constitutional rule without shifting the power between the
Congress and the states. Amendments with such a clause enact a constitutional rule AND ALSO shift power
between the Congress and the states.
Thus, it is inaccurate to say that all constitutional amendments add to federal power. Only those with these
enforcing clauses have that result.
2. Deadlines for ratification
The Bill of Rights had no deadline for ratification. One of the original bill of rights provisions was ratified in
1992 after being proposed in 1789. (This is the 27th Amendment.) It became usual practice to put a
deadline for ratification so that amendments would not linger indefinitely. Some of the deadlines are in the
text of the amendment. Some are in the preamble and resolving clauses. The Equal Rights Amendment put
the deadline in the resolving clauses. Then, as that deadline was about to come, the feminists got Congress
to give them another two and a half years to gain ratification.
This was one of my first major constitutional cases. I represented four Washington state legislators in a
challenge to the extension period. A federal district judge ruled in our favor. Then it was taken to the
Supreme Court. While pending in the Supreme Court, the second deadline passed without gaining enough
ratifications. The Supreme Court ruled that the deadline passing made the case moot and vacated the lower
court decision.
I believe that every proposed constitutional amendment will contain some form of the seven year deadline
from this point forward.
#2. On what legal grounds are homosexuals seeking the right to marry? Is there a constitutional argument or
is it just some judge deciding that it is ok? And if it does end up sticking in MA, does Article IV, Section 1 and
amendment XIV also uphold the right to marry in other states as well?
#3. By not allowing school prayer - doesn't that violate a student's right to the free exercise of religion? (Just
an aside- that is part of the reason we are homeschooling our children.)
#2. Many of the same-sex marriage cases have been brought on state constitutional grounds. The newer
cases are grounded in federal law and are based upon Lawrence v. Texas that is in your book. You should
read it now if you want to get a deeper understanding. Basically it is an equal protection/due process
argument that it is improper to discriminate against homosexuals.
#3. Public schools cannot stop individual students from praying--at least not legally. They do it, but they get
sued and the officials lose. The school prayer decisions are about group prayer--not an individual bowing his
head silently before a test, or over his lunch, etc. When they try to ban individual prayer it is a violation of
free exercise and the schools lose such cases.
#2. Do you agree with the United States v. Curtiss-Wright Export Co. ruling?
#2. I do agree with Curtiss-Wright. I think the President does have more leeway in establishing the details of
policies in foreign affairs, but he still cannot legislate. I view his decision as involving very little discretion but
much more implementation of a clear congressional policy. If I did more historical research to determine how
the first four presidents handled such things I would be more confident of my position.
The reason I take the view I do about air travel is that for safety reasons it is only possible of having one
level of government control the situation. Thus, we have to look to see, which is closer to original intent--
regulation of this kind of travel by the national government so that the travel rules are uniform or regulation
by the states so that each state may establish its own rules. What is not possible is two sets of travel rules--
one set for local airplanes and another for long-distance airplanes. They occupy the same air space and
must be regulated uniformly. The core idea of the commerce clause was uniform regulation of interstate
shipping and the like.
Having said that, let me tell you a few things about the constitutionality of eminent domain procedures.
1. You can read the latest Supreme Court decisions on the subject in your book--chapters 38 and 39.
2. It is perfectly constitutional for governments to condemn private property for public use provided that they
pay fair market value for the property. Juries ultimately determine fair market value if the dispute over value
cannot be resolved.
3. There are many other legal possibilities that can be used to fight such decisions. There is a possibility of
arguing that the airport will actually invade your property in flight and that they must by the airspace rights
over your property. If enough people did this then projects may become unfeasible. THIS IS A THEORY. I
have no idea if this is valid in your state and will basically be a state law issue. You really should get a
lawyer if you don't want an airport as a neighbor.
#2. In Chapter 12, the subject is about the amount of power that the President has to "fill in the blanks" so to
speak--following the principle of Original Intent, how much power do you believe the President should have
in this area under the Constitution?
Answer from DR. FARRIS:
#1. The Supreme Court would need a real case to decide whether NAFTA was improper or not. They do not
do advisory opinions.
#2. The President should have power to implement decisions of Congress but not have the power to make
policy decisions in the name of implementation. The vast majority of regulations and executive orders would
be unconstitutional under my theory.
1. If the landmark ordinance stops our church from expanding, we cannot freely exercise our religion by
serving all the people in our congregation...we need an exemption so we control our building size.
2. Patrick Henry College believes that homosexual behavior is sinful, we need a religious exemption from the
law that requires us to hire homosexuals.
3. Even though it is generally illegal to serve alcohol to minors, our church uses real wine in communion and
we need to serve it to minors to obey God about the role of. communion
4. Our church doesn't believe in female pastors, we need a religious exemption from the law that requires no
sex discrimination in employment.
5. We believe that God requires us to teach our own children, therefore we need an exemption from the law
that limits homeschooling to certified teachers.
What I have to ask is:
Concerning #1: What I really think about a church being prohibited from expanding on its own property is that
this is a violation of Amendment V property rights. I think the zoning laws are fine, if the city would pay the
church because they’re practically losing their building. Even if the RFRA is unconstitutional (or if the Court
says it is) couldn’t the church still challenge the laws under of the “just compensation” clause?
Concerning #2: Can a law really require you to hire homosexuals? It could ban discrimination on the basis of
sexual orientation, but couldn’t you just hire someone you liked? I mean, you wouldn’t have to say to the one
you didn’t want to hire, “You can’t work here because you’re homosexual.” If you found someone else who
could do the job, there’s at least a fifty-fifty chance the homosexual wouldn’t be hired anyway. So basically,
what I’m asking is, are there any laws that truly force you to hire homosexuals?
Concerning #3: I think the prohibition was unconstitutional because of the religious aspect you mention. But I
believe it would be wrong to serve alcohol to a small child because the child couldn’t understand what
alcohol does. I believe the government should outlaw serving alcohol to minors, or at least minors under
about eight or ten or so. Would do you think about this?
Concerning #4: Just like in #2, couldn’t you just hire a pastor "who happens to be a man", rather than refuse
to hire someone "because she's a woman"?
Concerning #5: Similar to #3, if it were proven that children did not get a decent education if their teachers
were not certified, then wouldn’t the certified teacher law be necessary, despite claims of “freedom to teach
our own children”? (Of course it isn’t true that children can’t get a decent education without certified teachers.
I can write OK, can’t I? And my teachers aren't certified.)
JOSHUA’S QUOTE: “Concerning #1: What I really think about a church being prohibited from expanding on
its own property is that this is a violation of Amendment V property rights. I think the zoning laws are fine, if
the city would pay the church because they’re practically losing their building. Even if the RFRA is
unconstitutional (or if the Court says it is) couldn’t the church still challenge the laws under of the ‘just
compensation’ clause?”
The ruling in Boerne and Smith is that churches must obey the same property rules as everyone else.
Zoning laws limit businesses and private homes all the time. Such restrictions are not a violation of property
rights according to the courts. A suit under "just compensation" theories would not work. The issue is
whether or not a church should have more freedom than a Wal-Mart. The only way that this will be
accomplished is through the free exercise of religion.
JOSHUA’S QUOTE: “Concerning #2: Can a law really require you to hire homosexuals? It could ban
discrimination on the basis of sexual orientation, but couldn’t you just hire someone you liked? I mean, you
wouldn’t have to say to the one you didn’t want to hire, ‘You can’t work here because you’re homosexual.’ If
you found someone else who could do the job, there’s at least a fifty-fifty chance the homosexual wouldn’t be
hired anyway. So basically, what I’m asking is, are there any laws that truly force you to hire homosexuals?”
What you are saying is that churches will be ok so long as we don't tell applicants for jobs the whole truth.
Here are the problems with this approach: If the church asks the applicant if they are a homosexual alarm
bells will go off. The Equal Employment Opportunity Commission will be contacted immediately and the
church will be in trouble just for asking the question. If they don't ask, how will they know. And if they find
out later and want to fire the person, what will they say then? I was in court (as an observor) once when a
church was being sued in San Francisco for firing a musician who worked for the church. The church found
out that he was a homosexual and urged him to repent. He refused and they fired him. According to your
theory, they should have played a clever game with him and said that his music was bad. But what if it
wasn't bad? Should the church lie? Should the church refuse to confront his sin? Being deceitful will not
work either morally or legally.
JOSHUA’S QUOTE: “Concerning #3: I think the prohibition was unconstitutional because of the religious
aspect you mention. But I believe it would be wrong to serve alcohol to a small child because the child
couldn’t understand what alcohol does. I believe the government should outlaw serving alcohol to minors, or
at least minors under about eight or ten or so. Would do you think about this?”
First, I do not drink alcohol at all. My church serves grape juice. I wish that states would raise the drinking
age to 85 or something (this may be an exaggeration). But, to say that a child will be adversely affected by
the amount of alcohol in a communion cup is stretching the point to the outer limits. Children also get a tiny
amount of alcohol by just using mouthwash or by putting a thermometer under their tongue that was just
dipped in alcohol for sterilization. The issue is who decides what is right here. Should you decide for
everyone? Should the government decide? Should churches decide? Should parents decide? Since it is not
scientifically valid to say that children would be seriously harmed by the amount of alcohol in a communion
cup, then I think the decision should be made by parents and churches, not outsiders and not the
government. But, the only reason that the church or parents would have the ability to override the decision
of the government is if they have a right to do so--and the only relevant right is the free exercise of religion.
JOSHUA’S QUOTE: Concerning #4: Just like in #2, couldn’t you just hire a pastor "who happens to be a
man", rather than refuse to hire someone "because she's a woman"?
Just like #2 I think that churches need to be upfront about this. Moreover, it would be very easy to prove a
case even if the church was clever. A woman applies for the job. She doesn't get an interview. She knows
that this church doesn't hire men pastors from reading their doctrinal teaching about women teaching men.
She files a lawsuit and schedules the elder board for a deposition. The first question is: Do you believe that
it is unscriptural to hire a woman as a pastor? So, what is the elder supposed to do? Lie? There is no
honorable substitute for the protection of liberty.
JOSHUA’S QUOTE: “Concerning #5: Similar to #3, if it were proven that children did not get a decent
education if their teachers were not certified, then wouldn’t the certified teacher law be necessary, despite
claims of ‘freedom to teach our own children’? (Of course it isn’t true that children can’t get a decent
education without certified teachers. I can write OK, can’t I? And my teachers aren't certified.)”
The government may set reasonable standards for the education of children. If the government wants to
require teacher certification, it can. You can prove that the education by such a person is unnecessary, but
absent a constitutional right, you have no basis for overturning a government rule. Example, you cannot
overturn the speed limit by arguing that it is not necessary to drive 55, and that you can drive safely at 80.
You lose when your argument is based on what is necessary. You must have a constitutional right to be able
to attack the application of a government law. In homeschooling, there are two relevant rights--parental
rights and religious liberty. You will read a case exactly like the fact pattern I have given you here later in this
book. (Michigan v. DeJonge). However, there was another case decided the same day as DeJonge. In
DeJonge the parents won the liberty to homeschool based on religious liberty plus parental rights. In the
second case, a secular homeschool family, lost their constitutional claim based on parental rights alone. (I
argued both cases). Both parents should have won. But in real life religious liberty made the difference.
#2. The women as pastors argument, I can understand, because women can't change their gender quite as
easily, heh, heh. Now what would you say about a church if they said that only women could be pastors?
Should they be given the same rights as churches where only men can be pastors?
#3. And as for the children-- if we said minors could drink alcohol for religious purposes, wouldn't that open
the door to "religious" cocktail parties, etc.?
#4. It seems this religious freedom business could reach the extremes--if Muslim parents taught their children
that they should murder infidels, the children believed it, and the children blew up something, wouldn't the
parents be at fault (even if they wouldn't be guilty of a crime) for their children’s unacceptable acts? Shouldn't
the law prevent this kind of teaching from being taught, in order to preserve people's "life, liberty, and
property"? If this law would be unconstitutional, what would you think of adding an amendment, specifically
for this (assuming we could get past the "tolerant" Democrats and the Muslims)?
#2. Of course I would support the right of a church to hire only women pastors. Religious freedom does not
mean that religions that agree with me should be protected. All religions should be protected. Now, don't ask
me to attend such a wacky church. But I support their legal right to hire whom they wish.
#3. Children and alcohol. Unlike communion, it is quite easy to prove that actual alcohol consumption of
anything more than a tiny amount is sufficiently harmful for children to stop it regardless of religious claims.
This is what the compelling interest test is all about. If there is a compelling interest (a goal of the highest
order) then the government may override religious freedom claims. It is hard to see why there is a
compelling governmental interest in stopping a 15 year old from having less than an ounce of wine in
communion. It is easy to see why we ban religious cocktail parties where the amounts consumed would
have a clear effect on the child. Moreover, there is not the longstanding tradition of religious cocktail parties
like there is with communion. Someone who invents such religious cocktail parties for minors will find
themselves in jail and with no hope of winning. The law does have some common sense--at least at times.
#4. Anyone who incites another person to violent acts can be punished under our laws. This is where the
compelling interest test comes in. There is clearly a compelling interest in stopping incitements to violence.
If the teaching was merely theoretical--someday at the end of the age there will be a religious war and we
must be ready to fight for Allah--that is different. And it is not that much different than some Christian views
of the end times. But when someone is saying that they should take up arms right now and kill--they can and
should be punished without regard for a religious defense.
If the person violates the civil law that is a part of the moral law of God, then there is no religious freedom
defense. However, if the person is in violation of a mere government regulatory scheme that is not required
by the moral law of God, they should be allowed a religious exemption from such laws if they are truly
burdened by the application of the law. Thus, murder, theft, violence, etc. is never justified in the name of
religion. The regulatory state (who you can hire, etc.) will normally not be allowed to override sincere
religious convictions.
Voting
In my own voting I am guided first and foremost by the standards of God. Deuteronomy 17:14- (through the
end of the chapter) sets out the standards for a king that I believe are applicable to political leaders in
general. One of these standards is that the king is not to turn from God's law to the right or left. To me this
means that candidates should be evaluated based on their fidelity to the principles I find in God's Word.
Candidates that favor abortion or gay rights always lose my vote on this basis. I can be as religious as I want
in this area--and so can everyone else. In voting, everyone (religious or not) is entitled to vote on the basis
of their own personal philosophy.
Legislating
Elected officials are entitled to take their own philosophy into their voting as well. If I were in the legislature
and was deciding the issue that you suggest (should children or parents be allowed to make decisions about
church attendance) I am always going to vote for the parents based on my understanding of God's Word and
our nation's history. There is nothing improper about doing that as a legislator. All legislators are entitled to
use their own philosophy in deciding such questions. When we MAKE law, we should be advocating that the
law reflect this moral approach. If we win enough votes in a fair process, then we will see our law reflect our
values.
Legal Decisions
I do not believe that ANY judge is entitled to use his own personal philosophy in making legal decisions.
Thus, a judge should never get to decide whether the Bible or the Koran or the latest opinion poll should
be laid on top of the Constitution and guide his interpretation and application of the law. A judge should
always ask the question, "What did these words mean to those who wrote and ratified the Constitution?"
If a judge were to ask that question about religious liberty (parents vs. children) there would be no doubt that
the correct answer would favor parents. The judge should reach that decision for historical reasons and
historical reasons alone. History is objective. Philosophy is subjective. And I do not believe in
subjective judges. Now, it just so happens that the history favors my philosophy bent because the people in
charge in the relevant period shared my fundamental convictions.
But, even in those rare cases where the history of the law would disagree with my philosophy, I still believe
that we should follow the historical meaning of the language of the text. If I don't like that historical meaning,
then I need to go to the legislative branch and get the law changed.
When we MAKE law, the Bible should be the guide of every Christian voter and legislator. But his success
will depend on convincing a majority to agree with the policy, even if they have a different reason for getting
to the same conclusion.
When we ENFORCE the law, the language of the law and its historical meaning should guide the judge.
In all spheres I am willing to give to those who disagree with me the same rights as I urge for myself. If I am
willing to use my own personal philosophy to guide judging, then I cannot complain when others do that to
me. But, since I faithfully take the side of historical meaning in judging--in good times and bad--then I can
argue that all judges should follow the rule of law and not inject their philosophy to achieve in court what they
could not achieve in the political process.
So in brief, I’m asking: Where is the foundation of original intent? If it rests in the laws of men it can be
overruled by today's procedures, constitutional or not, but if it rests in God's law, which the founders believed,
then it is the unbeatable protector of our rights.
Original intent analysis would look at the blend of parental rights and religious freedom in 1791 to determine
the meaning of this Clause within this application. Thus, we would ask the question: How would the founders
have answered this question in 1791? We would look at all relevant sources to determine the answer. But it
would basically boil down to looking at the legal sources in place at the time.
These legal sources would have been created by the Christian worldview. In other words, the political
processes of the time would have given reliable Christian answers to such questions. But our inquiry today
should be focused on WHAT they believed was the answer to the legal question rather than WHY they
believed what they believed.
The liberals like to argue from the Spirit of the founders. When they do this, they point to enlightenment
philosophers and Thomas Paine and others to give us answers to the meaning of the Constitution. And
there is enough in the writings of the founders to give them some basis for going in this direction. However, a
more honest look would show the even deeper influence of Christianity. But, the question of why they
believed the way they believed is almost always going to boil down to being a subjective matter.
We must ask objective questions to get objective answers. What did they believe about the relationship of
parents and children and the state? That is an objective question. Why did they believe this? That is a
subjective question. There is a saying, "Everyone is entitled to their own opinion, but everyone is not entitled
to their own facts." In law, we need to focus on facts--historical and current facts. In politics, we can and
should focus on worldview and opinion.
The Founders' worldview was consonant with Christianity in the vast majority of cases. When we rely on the
state of the law at the time to understand the meaning of the Constitution, we get the benefit of that
worldview. But we do so because of objective facts about the laws in place and the objective meaning of
words.
This is subtle and a very advanced discussion. You are remarkable for even asking the right questions. And
you clearly understand this deeply. The Bible guided them in the way they made their laws. When we
interpret the Constitution we should be trying to understand the meaning of words as used at the time. We
will look to these Bible-inspired laws to understand the words. We get the benefit of the Bible, without having
to proclaim that the Bible is the foundation of the Constitution. There is another very important reason for
doing it this way.
Not everyone agrees on the meaning of the Bible. Jean Calvin and John Knox, for example, believed that
the Bible required the magistrate to exercise the power to execute heretics. Thomas Helwys, John Leland,
and James Madison believed that the Bible taught religious liberty for all.
If we are to say that the Bible controls the meaning of the Constitution, are we talking about Calvin and
Knox's interpretation or Helwys, Leland, and Madison? To Helwys a Christian nation allowed liberty for all.
For Calvin, a Christian nation had a law requiring everyone to be a Christian under penalty of punishment.
These were not small disagreements about the Bible. The differences and the consequences were
enormous. The founders negotiated through all of this, picking the best parts of Calvin, and rejecting his
excesses, the best parts of Helwys, and rejecting others, etc. The result was a subtle blend that is really
tough to put a single theological label on. Moreover, we are trying to understand what a group of people
thought and why and not single individuals. The only reliable way to work through all this is to simply look at
what they did and the laws they made.
Finally, not all their political answers were right. Oh how I wish the founders would have banned slavery. We
can read the Word of God and come to different political answers than they did. The Bible should always be
our final guide in helping us reach our own personal political opinions. But, if we say that the Bible as they
understood it is the final answer on all matters, we would still have slavery. Of course, the Bible was not
wrong--because the Bible is incapable of error. Man's understanding of the Bible can be wrong--and on
slavery, man's understanding was wrong for far too long. The Bible should determine my own politics. The
Constitution should determine our judicial decision-making. The ACTS and LAWS of the Founders should
control the courts' understanding of the words in the Constitution. We benefit from the founder's motives; but
our courts should make their decisions on the objective standards of the founders' acts and laws.
He also gives evidence of the founders believing and supporting these principles. He calls it common law.
It makes sense that we should try to state in the law that God's law is supreme. In the end government is
responsible to God since He sets up and overthrows government in the first place. However, shouldn't we try
to do that in the law as well? If the Constitution is amendable then it can radically change even to the point of
revoking our God given rights. Doesn't it seem to be needful to have something that is unchangeable?
If that is the case is there anything that we can point to as being unalterable? Is there anything from the
founders that can be viewed as a binding unbreakable rule?
Couldn't the founders have put something in the Constitution to the effect of “the rights herein granted are
ultimately from God and can never be taken away or detracted from"? If so why didn't they do it? Could it
still be done?
There is nothing we can expect to preserve our liberties except our own diligence and the mercy of God.
Everything can be repealed. Everything. And we are precariously close to repealing many foundational
principles. You are right in arguing that rights that are God-given SHOULD never be removed. It would be a
violation of moral law to do so. However, under our legal system the votes of representatives control and
anything is theoretically possible. There is a doctrine of international law that might interest you. Nations
may not enact laws which violate the rules of jus cogens--compelling law or fundamental law. But, once
again, the issue is who decides what is compelling or fundamental.
A legal system has two components--process and substance. Your arguments have a lot of merit on the
substance side. You need to grapple with the process side of things.
Suppose there is an amendment that says: The Bill of Rights may never be repealed. How do you get
around that? Well, you repeal that amendment first and then repeal the Bill of Rights. Or, what if they are
cleverer and say, "Neither the Bill of Rights nor this Amendment may ever be repealed"? Two alternatives--
you can pass new amendments to "clarify" the Bill of Rights that purport to honor them but in fact undermine
them. Or, if things are really awful, they simply throw out the entire Constitution and replace it. If there is
enough political power in place to repeal the Bill of Rights there is also enough political power to repeal the
entire Constitution. Why do you think that the founders believed that eternal vigilance is the price of liberty? If
they could have guaranteed liberty with some good wording of amendments, I promise you that they would
have done so.
#2. On what legal grounds are homosexuals seeking the right to marry? Is there a constitutional argument or
is it just some judge deciding that it is ok? And if it does end up sticking in MA, does Article IV, Section 1 and
amendment XIV also uphold the right to marry in other states as well?
#3. By not allowing school prayer - doesn't that violate a student's right to the free exercise of religion?
#2. Many of the same-sex marriage cases have been brought on state constitutional grounds. The newer
cases are grounded in federal law and are based upon Lawrence v. Texas that is in your book. You should
read it now if you want to get a deeper understanding. Basically it is an equal protection/due process
argument that it is improper to discriminate against homosexuals.
#3. Public schools cannot stop individual students from praying--at least not legally. They do it, but they get
sued and the officials lose. The school prayer decisions are about group prayer--not an individual bowing his
head silently before a test, or over his lunch, etc. When they try to ban individual prayer it is a violation of
free exercise and the schools lose such cases.
The United States State Department maintains a website that has the goal of teaching the principles of
democracy to the entire world. What does our State Department say about the origin of the Bill of Rights?
“Two historic declarations of human rights were approved in the summer and fall of 1789, less than a
month apart -- France's Declaration of the Rights of Man and the Citizen on August 26, and
America's Bill of Rights on September 25. Both drew upon the doctrine of natural rights and other
philosophical wellsprings of the Enlightenment at a time when French and American attitudes were
close and compatible.”
This statement reflects what amounts to the “party line” among the modern academic elite. The assertion
that the Enlightenment is responsible for the American Bill of Rights may be common, but it is devoid of any
meaningful connection to the actual historical account.
The eyes of history see William Tyndale in his study at Little Sodbury Manor reading the Word of God. He
reads Acts 17:11, which says—in the words of Tyndale’s translation: “These were the noblest of byrth
amonge them of Thessolonia which receaved the Word with all dylygence of mynde / and searched the
Scriptures dayly whether those thynges were even so.” Based on this, and many other passages from the
Word of God Tyndale became convinced that the Scripture in English needed to be available to every person
in England from the King to the ploughboy. He repeatedly asserted the central idea of religious liberty—
private judgment—in his writings and actions. In the margin notes of his New Testament, Tyndale wrote:
“Searche the scriptures for by them may ye trye all doctrine.” Believers who measure the official doctrines of
the established church against the plumbline of Scripture are the inherent opponents of religious oppression.
Tyndale’s believes led him to action and he paid with his life.
History sees Robert Barnes, armed with Tyndale’s translation of the Word of God, defy the ostentatiously
powerful Cardinal Wolsley only to be told to “abjure or burn.” Barnes read 1 Corinthians 1 which taught him
that God will “destroy the wisdom of the wise.” From this he concluded that the true nature of God’s church
was spiritual and universal. He said it this way:
“Whether they bee Jew or Greeke, kyng or subject, carter or Cardinall, butcher or Byshop,
tancardbearer or cannelrater, free or bounde, frier or fidler, Monke or miller: if they believe in
Christes word, and sticke fast to his blessed promises, and trust onely in the merits of his blessed
bloud, they be the holy Church of God, yea and the very true church afore God. And you with all your
spiritual tokens, and with all your exterior cleanness, remaine in your filthynes of sinne . . . the
Church is a spiritual thing, and no exterior thing . . . the holy Church is the congregation of faithful
men wheresoever they be in the world.”
Barnes’ belief that the church was spiritual and universal, not political and national, was utterly incompatible
with the theories of repression that are inherent in a nationally established church. Eventually, Queen
Elizabeth took his life for his contributions to the theory of liberty.
The Kent Coventiclers (Freewillers), including men like Henry Hart and John Champneys, read Isaiah 29:13-
14, which teaches that the wicked honor God with their lips “taught by the commandment of men”, but that
“wisdom of the wise men shall perish” and concluded that they were better off with small churches in homes
taught by those who studied the Scripture despite the claims of Protestant and Catholic alike that they
needed to heed the teaching of the educated and ordained who were sanctioned by the church and crown.
Henry Hart boldly proclaimed:
“Woe be to those bishops, pastors / and lawyers / of what name and place so ever they be, which
boast of power and authority to rule and govern another / and yet have no respect to their own souls:
for . . . miserably shall they be rewarded that bear the name of christian people which seek holiness
only by outward sacraments and signs, not regarding what the heart and inward conscience be / and
also say in your selves, tush we be well enough, for the holy laws ceremonies / and Sacraments of
god are remaining among us and thereby we are known to be his people. Nevertheless be thou of
good comfort, O thou little worm Jacob, and thou despised Israel, for thy redeemer liveth: fear
neither the proud boasting nor threatening of thine enemies…”
These were the first who challenged the idea of an established church, not by ideas alone, but with their
actions. For this they were threatened, jailed, and many were executed. The educated elite could not
silence them with their human wisdom, so they turned to the sword and the faggot.
Sabastien Castellio, hiding in Bern, Switzerland, but never far from the shadow of repressive Geneva, dared
to read the parable of the wheat and tares found in Matthew 13 and not just rely on the contorted
interpretation of that passage in the writings of Augustine. Augustine’s disciple, John Calvin, believed that it
was his job, not God’s to separate the wheat from the tares by the execution of heretics. Castellio’s
arguments for religious liberty were not based on a rejection of Scripture, but on its proper interpretation.
Castellio’s words, which were cited by later English dissenters, still ring true today:
“Christ made a direct command to leave the tares until the harvest, not to root them out; Ananias and
Sapphira were killed by a direct act of God, not church or civil officials; Deuteronomy 13 says that
the test for a false prophet is whether their predictions come true, not whether their interpretation of
Scripture agrees with that of the ruling authority
It is absurd to wage spiritual war with earthly arms. . . The office of the doctor is not to be committed
to the executioner, nor the outside of the cup to be cleansed before the inside.”
Thomas Helwys and the other early Baptists in England were moved by the words of John 4:24: “God is
spirit, and they that worship him, must worship him in spirit and truth.” From this passage Helwys concluded
that coerced worship can never be accepted by God because it does not flow from the heart of the compelled
worshipper and is ridiculed with hypocrisy. Because he read the Scriptures to demand only true worship
from a free heart, Helwys advocated religious liberty and he dared to send his plea theory for freedom to the
reprobate King James. James threw Helwys into Newgate Prison. He died, but his ideas did not disappear,
because they were not his alone but naturally flowed from a correct reading of the Word of God.
Samuel How, a simple cobbler, dared to preach in the early days of the English Civil War. His preaching, like
all of his actions, was grounded in Scripture. He placed particular reliance on 1 Corinthians 2 which taught
him that spiritual knowledge is given to us freely since, as believers, we have the mind of Christ. He argued
that the formal blessing of the state and church was no guarantee of spiritual wisdom:
“The natural man, or carnal reason, cannot perceive the things of God—therefore a university
degree and proficiency in classical languages is no guarantee that an individual is a spiritual leader,
and these qualifications should certainly not form the test of whether an individual can understand
and interpret for themselves the Word of God . . . God can and does communicate His truth to
peddlers, tinkers, chimney-sweepers, and cobblers.”
How engaged in freedom of speech and the free exercise of religion—ideals we now cherish—but did so at a
time that it was illegal to speak against the official conclusions of the established church. His actions
produced his arrest. His arrest, however, aided the ongoing march of religious liberty.
William Dell, chaplain in the New Model Army, saw the potential for liberty evaporate as both the Anglicans
and the Presbyterians battle for ecclesiastical supremacy. During the crucial days of the Westminster
Assembly, he defied the call for coerced uniformity to the Confession. Rather, reasoning from Galatians 5
and 6, he called for a spiritual unity based on our new birth in Christ in lieu of coerced uniformity arising from
a national doctrine.
“As in Christ’s kingdom neither Circumcision availeth any thing, nor uncircumcision, but a new
creature, so in this same kingdom of Christ, neither Presbytery availeth anything nor Independency,
but a new creature: and that the kingdom of God stands not in Presbytery or Independency, but in
righteousness, and peace, and joy in the holy Ghost.” . . . The spiritual distinctions that matter “lie
only there, where God hath made it,” between those born after the flesh and those born after the
Spirit.”
Roger Williams was influenced by Hebrews 4:12 that proclaims that the Word of God is the sword that God
wants to use to judge the hearts of men. This meant, of course, that there was no role for the sword of
government in spiritual matters. “The civil sword cannot reach all the way into the spirit—but the Word of
God can and does.” Williams’ biblical advocacy of religious liberty was not merely found in his writings, but in
the founding of Rhode Island, a colony committed to liberty for all.
Christopher Blackwood, a Baptist pastor from Kent, writing in the Pamphlet Wars of the mid-seventeenth
century, contended that true belief in the Christian faith is utterly inconsistent with any effort of coercion of the
human will. God does not coerce us to believe, neither should man. Blackwood took his understanding of
Scripture to its logical conclusion that God was not pleased with a national church.
“It overthrows Christian liberty to force a man to act according to what he believes is a lie – it is far
worse to have “a glorious seeming uniformity in a state of self-condemnation” in a single national
church than it is to have “conscientious satisfaction” with diversity of opinion and congregations.”
John Sturgion’s 1660 response to the repression by Anglican officials proclaimed the theme that we would
find echoed in America a century later. “Mankind has different duties to both God and the state—and the
state has no right to interfere with God’s prerogative.” Sturgion, a member of the “baptised peoples” found his
ideas of liberty in the pages of the Word of God.
John Locke, whose role in the development of the theories of liberty cannot be questioned, reasoned from
Scripture. He contested the idea that a true church could ever be found within the pages of the Gospels.
“Someone perhaps may object, that no such Society can be said to be a true Church, unless it have
in it a Bishop, or Presbyter, with Ruling authority derived from the very Apostles, and continued down
unto the present times by uninterrupted Succession. To these I answer: In the first place, Let them
show me the Edict by which Christ has imposed that Law upon his Church. And let not any man
think me impertinent if in a thing of this consequence, I require that the Terms of that Edict be very
express and positive. For the Promise he has made us, that wheresoever two or three are gathered
together in his Name, he will be in the midst of them, seems to imply the contrary.”
Locke rightly understood that Christ is found among the faithful few—an idea he expressly got from a faithful
application of the teaching of Matthew 18:30.
Gilbert Tennet, son of a Presbyterian minister, influenced by the great George Whitefield, preached in the
American colonies in the 1740s and 1750s that it was improper for the state to demand the right to license
ministers. This idea came from his reading of Romans 14:23, which proclaims that any spiritual service that
does not flow from a faithful spirit is sin. Tennet concluded that it was sin—an idea not fashionable among
the Enlightenment philosophers—to compel a man to confess doctrine he did not genuinely believe.
“To bind Men to a particular Minister, against their Judgment and inclinations, when they are more
edified elsewhere, is carnal with a Witness; a cruel Oppression of tender Consciences, a compelling
of Men to Sin: For he that doubts, is damn’d if he eat; and whatsoever is not of Faith, is Sin.”
Toward the end of the American colonial period, Baptist and Presbyterian petitioners reasoned from the
Gospels and the Book of Acts to proclaim that the established church’s licensing requirements were
unscriptural.
“Regulation of their churches and licensing requirements ‘inconsistent with . . . the Practice and
Usage of the Primitive Churches’ and contrary to ‘the Example of our blessed Saviour, “who went
about doing good,” and the example of his Apostles who not only “taught in the Temple, but in every
hour where they came they ceased not to teach and preach Jesus Christ.”’”
John Leland, that great Baptist preacher and associate of James Madison, focused on Christ’s final judgment
as one of his many scriptural arguments for religious liberty. “Every man must give an account of himself to
God, and therefore every man ought to be at liberty to serve God in that way that he can best reconcile it to
his conscience. If Government, can answer for individuals at the day of judgment, let men be controlled by it,
in religious matters; otherwise, let men be free.”
Leland, like so many of the other advocates of religious liberty, was no mere philosopher or author. He
thought and wrote and acted. He didn’t just talk about religious liberty. He was an actor on the stage of
history that turns ideas into reality.
James Madison played a key role in the founding of this nation and the establishment of religious liberty and
clearly deserves to be known as the Father of the Constitution. But the true heroes of our story are the
common people that Tyndale inspired and Madison marshaled for political victory. These individuals are the
ones who read the Word of God and truly understood both the liberty of the soul and the liberty of the mind.
And the test of liberty has never been whether one asked for liberty for himself, but whether he wished liberty
for all men of all faiths or no faith at all.
Historian Perez Zagorin has examined the supposed role played by the Enlightenment in the development of
the ideals of religious liberty. He found little evidence of a direct influence. Instead he looked to the era of
the Kent conventiclers and Thomas Helwys and concluded, “[T]he intellectual changes…, since they
occurred only gradually, cannot possibly account for the theories and defenses of toleration that appeared in
the second half of the sixteenth century. The latter were the work of profoundly Christian if also unorthodox
thinkers, not of minds inclined to religious indifference or unbelief; and they same is also true of nearly all the
major theorists of toleration in the seventeenth century.”i
The fabled W.K. Jordan said much the same thing in the opening pages of his five-volume work on the
history of British religious toleration. “It cannot be denied that skepticism and indifference have been
powerful agents in weakening the theory and practice of persecution. But is an error to say that the
indifferent man can be tolerant of a religious belief; he is simply indifferent to it. There can be little doubt that
the modern tolerance towards religious diversity has a large content of indifference, but religious toleration,
was achieved, at least in England, before public indifference to theological questions had attained a place of
dominant influence.”
It is one thing to talk about religious liberty as an abstract concept. It is quite another to enter into the lists of
battle and be willing to win religious liberty—sometimes at a great personal cost. Those willing to engage in
such a battle are not the indifferent, but those whose personal faith is at the core of their life.
Ideas matter. And not all religious ideas are equal. Those who found the ideals of religious liberty found
these in the Word of God and were directly connected to their belief about personal salvation, the need for
individual regeneration, and the spiritual nature of the Church. They did not believe in religious in spite of
their Christianity, but for explicitly because of their individual faith in Christ that had been molded and
instructed by the Word of God.
The greatest evidence of the truth of the inner reality of their commitment to liberty can be found in their
willingness to support the cause of liberty for those different from themselves. This leads us to one final story
from the Virginia Baptists of the late 1700s.
Even as the Bill of Rights was still being debated and ratified, the Virginia General Baptist association held
yet another political meeting. They met on May 8, 1790 in Richmond. One of the resolutions concerned the
issue of slavery. A committee was appointed to consider the matter, but it could not agree on the wording of
any resolution. But, as the official minutes record, they…
“…agreed to lay the weight thereof, on the Reverend John Leland who brought forth in a resolution
which was agreed to and is as followeth:
Resolved, That slavery, is a violent deprivation of the rights of nature, and inconsistent with a
republican government; and therefore recommend it to our Brethren to make use of every legal
measure, to extirpate the horrid evil from the land, and pray Almighty God, that our Honourable
Legislature may have it in their power, to proclaim the general Jubilee, consistent with the principles
of good policy.”
Leland read the Bible and understood the principle of Jubilee—a declaration of freedom for all encumbered
by debt and servitude.
Leland and the Virginia Baptists were ahead of their time on the issue of slavery. But then again, on matters
of liberty, the ploughboys were consistently in front of the educated elite who thought they knew better. The
reason we have a Bill of Rights in the United States is because countless ploughboys like John Leland
believed the Bible and took seriously its teaching about liberty for all. It is the Word of God that is our source
of liberty.
“Now the Lord is the Spirit; and where the Spirit of the Lord is, there is liberty.”
Could Congress ban pornography on the internet that was not in the channel of commerce?
Or even before we get to that; Could parts of the internet be considered not inside the "channel" of
commerce? (For example, private and privately owned forums closed to the general public.)
It seems to me that saying that Congress can regulate the internet carte-blanche because commerce often
travels through it is like saying that Congress can regulate the air because airplanes often travel through it.
By its very terms, the 14th Amendment applies only to the states. It is fairly easy to catalog how the Supreme
Court has interpreted the Due Process and Equal Protection clauses. It is far more difficult to make sense of
their rulings in light of original intent.
EQUAL PROTECTION
It is obvious that state governments need to be able to draw lines and make distinctions in the law. For
example, five year old children shouldn’t be allowed to drive tractor-trailers on the highway. But distinguishing
between 5 year olds and 25 year olds in a law concerning eligibility to drive tractor-trailers is a violation of the
principle of equal protection if you take an extremely literal view of the matter. Also, those who have gone to
medical school and passed exams can perform brain surgery, those who have not done this cannot do so
according to state medical licensing laws. This is another example of a facial violation of equal protection.
No one wants 5 year olds driving tractor trailers, nor untrained persons performing brain surgery. So we have
to have the ability to have laws that draw lines and make distinctions between various classes of persons for
a great variety of purposes.
If the Equal Protection Clause had merely said “no person shall be denied equal protection of the laws on the
account of their race” then this would all be very easy. But the Clause does not say that. It clearly includes
the principle that racial discrimination is unconstitutional, but the drafters of the 14th Amendment did not
choose to limit this principle merely to racial inequality.
So the courts are left with a dilemma. How do we keep five year olds out of the driver’s seat and untrained
persons out of the operating room and yet provide some meaning to the provision that guarantees equal
protection?
The Court has created a complex set of tests for the Equal Protection Clause—no surprise there. These tests
have little to do with original intent—in fact, I cannot recall any meaningful discussion of original intent in
connection with the creation of any of these tests.
The Court started off with two basic divisions: cases requiring “strict judicial scrutiny” and cases not requiring
such scrutiny—or requiring only ordinary scrutiny. (Today there are three levels—but that makes things too
complex too quickly, so let’s just think about the two levels for a while.)
When do you apply strict scrutiny? If a state law divides the population along lines that create a “suspect
classification,” then the law is subject to strict judicial scrutiny. The easiest example here is racial
discrimination. If a law says: white children go to one set of public schools and black children go to a different
set of public schools, then this is a racial classification and this law will be examined under strict judicial
scrutiny.
Strict scrutiny is essentially the same as the compelling governmental interest test we are familiar with in
First Amendment law. The law which creates a suspect classification is presumed to be unconstitutional. The
government can still overcome this presumption, but to do so it must show that this classification serves a
compelling governmental interest.
This is how liberals try to defend laws requiring racial quotas. They recognize that a law requiring employers
to give favoritism to racial minorities creates a racial division—and thus requires strict judicial scrutiny. But
they say that “overcoming decades of discrimination” is a compelling governmental interest and justifies this
discrimination against white people. (By the way, these laws are not doing very well in the courts in recent
years.)
If the law draws lines that are more ordinary—you must be 16 to get a driver’s license—then ordinary
scrutiny is applied. The law is presumed to be constitutional. The litigant claiming that he has been denied
equal protection—the 12 year old who challenges the age discrimination for drivers licensing, for example—
must prove that the law is not reasonably (or rationally) related to some legitimate governmental interest.
This “rational relationship” test requires two things: (1) that the governmental interest—the goal of the law—is
legitimate; (2) that the law has a reasonable relationship to the achievement of that goal.
The vast majority of cases focus on the second of these two tests. It is conceded that “traffic safety” (for
example) is a legitimate governmental interest. But the question is whether the law is reasonably related to
that interest. Thus, a law saying you have to be 16 to get a driver’s license is reasonably related to the
interest of traffic safety. A law which said you must wear a green t-shirt while driving would not be reasonably
related to the governmental interest of traffic safety.
Note how different this case might be if the other test was used. If a 15 year-old challenged the age limit for
drivers licensing and was entitled to “strict scrutiny” then the age discrimination would be presumptively
unconstitutional. The state could not defend its scheme under the compelling interest test saying that 5 year-
olds needed to be kept out of the driver’s seat in large trucks, the state would have to show that an interest of
the highest order required the line to be drawn at 16 rather than at 15. That would be very hard for the
government to do.
The choice of test is of paramount importance. When strict scrutiny is applied, the government rarely wins.
When the rational relationship test is used, the government rarely loses.
A case HSLDA has pending right now (April 2003) demonstrates the more rare kind of equal protection
challenge—one which challenges the legitimacy of the governmental interest.
A county in Maryland allows outside organizations to teach geography and knitting classes to students in
their community center buildings. However, home school groups which want to teach geography and knitting
classes to students are not allowed to use these buildings.
The reason given by the County Board for the ban was this: We didn’t want to have trouble with the school
board if we allowed a home school group to use these buildings.
We have argued that the desire for one group of politicians to avoid conflict with another group of politicians
is not a legitimate governmental interest. Thus, even if the County is successful in seeking ordinary scrutiny
rather than strict scrutiny (as we argue), the policy is still not constitutional because the goal of the policy is
not legitimate.
Very few kinds of discrimination are considered “suspect classifications.” Notably, gender discrimination is
not considered a “suspect classification.” Gender discrimination is evaluated under a mid-range standard that
we will study in more detail.
MY VIEW
As usual, I do not like the “tests” created by the Supreme Court unless they can be justified on the basis of
original intent.
You may remember that with the First Amendment the general rule of thumb for original intent is that the
founders were trying to preserve the long-standing traditional rights of American citizens. However, with the
14th Amendment, the goal was the opposite. Rather than trying to preserve the law, the purpose of this
Amendment was to change the law—at least with respect to the way that black people were treated by the
law.
It is easy to read history and conclude that something very much like the suspect classification test was
intended—but only in the area of racial discrimination.
I believe that the Equal Protection Clause bans arbitrary treatment of individuals. Racial discrimination is
always arbitrary. The core meaning of arbitrary is a distinction which lacks a valid basis. The question would
then be: what did the people who wrote the 14th Amendment consider to be an arbitrary, unreasonable, or
irrational distinction, and what did they consider to be a valid distinction.
Outside the area of race, it is very appropriate to look at the law in place at the time—particularly the kinds of
laws enacted, not in the 1700s, but in the mid-to-late-1800s—to see what kind of distinctions were
considered permitted. Some distinctions between men and women were permitted. Distinctions between
homosexuals and heterosexuals were permitted.
DUE PROCESS
If you think that Equal Protection is complex, wait until we get through unraveling the 14th Amendment’s Due
Process Clause.
“No person shall be denied life, liberty, or property without due process of law.”
On the face of these words, it seems this Clause is intended to do nothing more than to make sure that the
state courts give everyone a fair trial with all the appropriate components of due process in both civil and
criminal cases. And there are people who—with some considerable justification—think that this Clause
means this and nothing more.
The 14th Amendment Due Process Clause has been the chief mechanism by which the Supreme Court and
lower federal courts have seized general control of state and local governments.
The Supreme Court has applied the 14th Amendment Due Process Clause to state and local governments in
three distinct ways:
1. States must guarantee fair trials in their courts. (This is not controversial.) This is called procedural due
process.
2. States must obey the restrictions of most, but not all of the Bill of Rights. (This is not controversial with the
Supreme Court or virtually any lawyer. It is controversial with a very few including me—although I use this
theory in court.) This is called the incorporation doctrine—that is (the bulk of) the Bill of Rights are
“incorporated into” the Due Process Clause. (This is also called at times: the federalization of the Bill of
Rights, or, perhaps, more accurately, the nationalization of the Bill of Rights.)
3. States must protect constitutional rights that are not listed in the Bill of Rights. (This is controversial. Scalia
rejects it entirely. I think it has gone way overboard although I do not reject it entirely.) This is called
substantive due process.
We will skip over the area of procedural due process since it is not controversial. This principle is absolutely
consistent with original intent, although occasionally is it misused. But in the general sense it is perfectly
proper.
The Supreme Court has held that most of the provisions of the Bill of Rights must be obeyed by state and
local government. This includes the entire content of the First Amendment and other provisions such as the
ban on double jeopardy, no cruel and unusual punishment, and the right to counsel. It has not included, for
example, the rule that all civil trials in amounts of over $20 must be tried by a jury. This provision in the
Seventh Amendment binds only the federal courts. State courts can set their own financial minimums for jury
trials in civil cases. (But interestingly, the federal courts have used the Incorporation Doctrine to require the
federal standards to be followed by the states in setting jury trials in criminal cases.)
MY VIEW
This entire theory is historically suspect. There is no basis for saying that those who drafted or ratified the
14th Amendment intended the states to be required to obey the Bill of Rights. The reason this is so is that the
state constitutions have parallel provisions to the vast majority of the Bill of Rights in virtually every state.
This theory is also illogical. If the drafters/ratifiers intended to incorporate the Bill of Rights, why were they
selective about which provisions were incorporated and which were left out? How can a rational person tell
which is which?
The only way that a person can tell which is which is to research the decisions of the Supreme Court and see
which is in and which is out. One will search these decisions in vain to find a rational basis for finding those
which are included and those which are excluded.
If the states have parallel provisions to all of the Bill of Rights, why is this controversial? They would have to
grant free speech rights anyway, what’s the difference if the federal or state constitution is cited?
The difference is huge. It is a question of who decides. If the federal constitution is the standard, then the
U.S. Supreme Court sets the standard. To use a popular example, the Supreme Court has decided that
legislative groups—including Congress—can pray but that public schools cannot pray. This is despite the fact
that the First Amendment is directly addressed to Congress, not the public schools.
If the issue of school prayer was decided under a state constitution, the courts of that state would make a
decision that was unreviewable by the Supreme Court or any other federal court. Thus, they could hold that
since the legislature can pray, the schools can also pray since the same provision in the state constitution
controls both governmental bodies and there is nothing in the language of the text which would justify a
different outcome in the two different settings.
No state would have a state church if the federal Establishment Clause was not applied to the states. But,
there would be some states that allowed school prayer, while others would ban it under their own state
constitutions.
The core principles of the Bill of Rights—no state church, for example—would be followed everywhere. But
there would be differences from state to state around the more peripheral issues such as school prayer.
There would be more variety of outcomes in the states if the Bill of Rights were not (selectively) incorporated.
One would have to admit that in some states, there would be less freedom than is allowed under the current
nationalized standards. But in other states there would be the same freedom and in others, perhaps more
freedom in some areas. (In the free exercise of religion, this is current the case. A great number of states do
not follow Smith v. Employment Division, but grant a higher protection for the free exercise of religion than
this decision offers.)
However, it is also probable that there would be greater restrictions on the power of the federal government
to trample on our rights if the Bill of Rights were not incorporated.
In must be remembered that the effect of the incorporation doctrine is that the federal government and the
state governments must follow the exact same standards in free exercise, establishment of religion, freedom
of speech, freedom of the press, cruel and unusual punishments—etc.
In every one of these areas—particularly the First Amendment areas—the Court has adopted a balancing
test—the compelling governmental interest test, with the notable exception of most free exercise cases.
But the First Amendment’s language does not admit of a balancing test. It says: Congress shall make NO
LAW. I view the First Amendment as an absolute ban on the power of the federal government (which should
never act unless authorized by a law of Congress) to exercise jurisdiction over these areas at all. Thus, the
IRS could not exercise jurisdiction over churches at all. Period. The First Amendment is a jurisdictional
limitation not a grant of rights.
It is appropriate to limit the federal government this way. Since the federal government has only delegated
powers, an absolute rule with no balancing is appropriate. People won’t get away with murder in the name of
religion, for example, because murder is a subject that has not been delegated to the federal government at
all.
States cannot adopt an absolute rule regarding religious freedom. They do face the issue of whether
someone can get away with murder in the name of religion. States must have a balancing test.
Thus, it is my contention that on the whole we would have more freedom if the First Amendment was used as
an absolute rule vis-à-vis the federal government and that the states were allowed flexibility under their state
constitutions to reach their own particular outcomes.
This last area is the most controversial of all. This theory allows the Supreme Court to take matters that are
not in the Constitution at all and add them to the rights of the people.
These unwritten rights include some very good provisions--parental rights to control their children's education
and upbringing--and the very bad theories--the right of a woman to reproductive freedom.
Justice Scalia takes the logical view that no rights should be found to be included in the Constitution which
are not written in the text. Therefore, he opposes both abortion rights and parental rights. He opposes the
very notion of substantive due process.
My long-held view has been that only those rights which were rooted and grounded in the American-English
Common law are protected without being written. I would cite the 9th Amendment to make parental rights a
guarantee which the federal government could not violate.
I have trouble making parental rights fit within the Due Process language of the 14th Amendment. In essence
I have argued that parental rights must be recognized as a liberty provision that should be given some
substance. In more recent months, I have become more convinced that Scalia's view may be better
concerning the whole theory of substantive due process.
I think that parental rights can be recast as a proper part of procedural due process.
Let me begin my argument with an analogy. I believe that procedural due process prevents a state legislature
from passing a law saying, “Anyone charged with murder shall be convicted upon a roll of the dice.” In other
words, it is not enough for the legislature to simply pass a law. There is a certain level of proof required to
take away someone's liberty or life in the context of a murder trial.
I think this is true with parental rights as well. There is 400 years of Anglo-American legal history that says
that a parent has the power to make all decisions concerning his/her children including decisions about
education and discipline unless it has been proven that this parent has abused or neglected his or her
children.
Parental rights are the only area of substantive due process that I think are valid. All other substantive due
process rights are like abortion and homosexual rights--absolutely improper. It is impossible to recast these
bad areas into a procedural due process rights that are grounded in history.
While Justice Stevens is my least favorite justice, his recitation of the relevant history is accurate in this
passage.
”It must be remembered that every State but Rhode Island had a written constitution by the close of the
Revolutionary War in 1783. “[F]or the first century of this Nation's history, the Bill of Rights of the Constitution
of the United States was solely a protection for the individual in relation to federal authorities. State
Constitutions protected the liberties of the people of the several States from abuse by state authorities.”
Massachusetts v. Upton, 466 U.S., at 738-739, 104 S.Ct., at 2091 (STEVENS, J., concurring in judgment).
The independent significance of state constitutions clearly informed this Court's conclusion, in Barron v. The
Mayor and City Council of Baltimore, 7 Pet. (32 U.S.) 243, 247-248, 8 L.Ed. 672 (1833) that the Bill of Rights
applied only to the Federal Government:
The question thus presented is, we think, of great importance, but not of much difficulty. The constitution was
ordained and established by the people of the United States for themselves, for their own *706 government,
and not for the government of the individual states. Each state established a constitution for itself, and, in that
constitution, provided such limitations and restrictions on the powers of its particular government as its
judgment dictated... In their several constitutions they have imposed such restrictions on their respective
governments as their own wisdom suggested; such as they deemed most proper for themselves. It is a
subject on which they judge exclusively, and with which others interfere no farther than they are supposed to
have a common interest.”
The first time the Supreme Court applied any portion of the Bill of Rights to the states was in the case of
Gitlow v. People of New York, 268 U.S. 652 (1925)
Here is the entire discussion of the decision to apply freedom of speech from the First Amendment to a state
case. This began the entire theory of the "selective incorporation of the Bill of Rights into the 14th
Amendment."
“For present purposes we may and do assume that freedom of speech and of the press -- which are
protected by the First Amendment from abridgment by Congress -- are among the fundamental personal
rights and “liberties” protected by the due process clause of the Fourteenth Amendment from impairment by
the States. We do not regard the incidental statement in Prudential Ins. Co. v. Cheek, 259 U.S. 530, 543, that
the Fourteenth Amendment imposes no restrictions on the States concerning freedom of speech, as
determinative of this question.”
Now wasn't that convincing? Didn't you love their historical research? This whole theory is based on an
assumption. Once again, the Supreme Court has just made up a theory out of thin air. By reading the above-
paragraph from Gitlow, you can see how thin the air really is.
"For example, the Constitution’s General Welfare Clause is a direct "descendant" of this phrase from the
Articles of Confederation:
‘All charges of war, and all other expenses that shall be incurred for the common defense or general welfare,
and allowed by the united states in congress assembled, shall be defrayed out of a common treasury...it is
pretty easy to determine the original meaning of the General Welfare Clause when we recognize that it was
taken nearly word-for-word out of the Articles of Confederation. ... Congress under the Articles of
Confederation had extraordinarily limited power. If it had the power to spend money on any subject it
wished, there might not have been a need to amend the Articles at all.’”
But that need not be the case--the Confederation Congress could have had the power to SPEND, but simply
not the power to TAX. I recall the lack of a good way to tax was a large problem with the AOC. Furthermore,
the language of "OR the general welfare" makes it sound like a separate grant of power not a qualification.
Why isn't there any explanation nearby to resolve this apparent confusion?
Answer from DR. FARRIS:
There were several problems with the Articles. The inability to force the states to pay the taxes was indeed a
big problem. But there were also very big problems concerning the scope of the government to act--for
example, the confederation congress was unable to act to regulate international or interstate commerce.
There were severe problems on both fronts. Today the theory is that the General Welfare Clause gives the
federal government to spend money on issues not within its enumerated powers. For example, Medicare is
not within the enumerated powers but it is justified on the General Welfare front. This is a massive program
of socialized medicine which both regulates and spends.
If the General Welfare Clause in the Articles were interpreted on the same basis--the Congress can spend
money on anything that promotes the general welfare--then they could have spend money to regulate trade
internationally etc. If you can spend money on a subject, you can regulate it.
If either document had a wide open ability to spend, then its ability to regulate is without practical limit.
Could parts of the internet be considered not inside the "channel" of commerce? (For example, private and
privately owned forums closed to the general public.) It seems to me that saying that Congress can regulate
the internet carte-blanche because commerce often travels through it is like saying that Congress can
regulate the air because airplanes often travel through it.
Congress can regulate the air for the purpose of anything in the air that would get in the way of an airplane.
It can't regulate the air for breathing. (Or at least it shouldn't). So if a guy puts big balloons on a lawn chair
and goes up in the air, he has entered the space controlled by Congress and it is proper for them to punish
such private behavior if done in a way that violates the rules relative to air flight.
And, backing up, how far does the navigable water system reach? We have a creek flowing through our
woods that flows into a tributary of a nearby river. Can the government regulate our creek? Now, I
understand this creek isn't very navigable, but where do you draw the line?
If Congress, were to pass such a law, I would hope that they would not grab jurisdiction over every computer
on the theory that they all eventually enter the internet. But they very well could reach that conclusion. If
they did they would take the position that a computer is an instrumentality of interstate commerce. The
Mississippi River is a channel of commerce, riverboats are instrumentalities. By analogy then, the internet is
a channel and computers could be considered an instrumentality. If they took that approach Congress could
regulate all computers.
A public school teacher is also a catholic priest. At the beginning of class, he requires each student to pray
an “Our Father” and a “Hail Mary”, as well as worship by singing the doxology.
#2. A case came before the SCT recently about the death penalty. What I would think as my first guess is
that the court should say that the method of killing was fine since it appears to be as humane as hanging,
which I believe was the standard method of execution at the time the constitution was adopted. Am I right
about what the SCT should do? (Now, personally, I'm not in favor of hanging as a method of execution for
various reasons, but personal preference is unrelated to OI. Also, I think the SCT will do something different
from what it should do.)
2. There is no doubt that a person could be hung or shot and it would be consistent with original intent. I
don't know enough about the science of lethal injections, but if it is only a momentary discomfort, I don't see
there being a true 8th Amendment violation.
Polygamy was considered a malum in se crime at the common law. Religious freedom would never justify
polygamy.
There are lots of other rights I wonder about sometimes, like, the right to travel. You have to pay a fee (like
$2.50) to get out of the US on the way to Mexico. This probably is not violation, but, where do you draw the
line? I see these "unwritten rights" must be very fuzzy. It was common for teenage boys to join the army
without the express will of their parents at the time of the constitution. Is that an unwritten right, then?
The Mississippi question you pose is about the duty of parents to provide an education for their children. The
Mississippi system is close to ideal. There is no advance demand on the parents to register or jump through
hoops of a bureaucratic nature. Education is treated the same way as food. A parent has a duty to furnish
food to a child; but there is no prior restraint system requiring parents to pre-file their menus with the
government. Nor is there a magical formula for what kind of food is necessary. Rather, there are simply
generalized rules that children need sufficient nourishment. The same system is in place for education in
Mississippi. If a parent doesn't give a child a proper education, he can be held responsible after the fact just
as he can be held responsible for failing to give the child food.
This is how a system with balanced freedom and responsibility should work.
Even though there was an aberrational decision in the Warren Court era, I do not believe there is anything
like a constitutional right to travel. If you mean "no discrimination when you move from state to state"--that is
not the right to travel but rather specific rules contained in Art IV Sec 2.
Question from DAVID CROSS:
My dad told me about this group called “We the People”. (http://www.wethepeoplefoundation.org/) I have an
inkling that they have libertarian leanings, so it isn't perfect and there might be other problems with them as
well.
However, the one of the main things they do is petition the government for redress of grievances. You can
find this right in the First Amendment. Apparently, they seem to think this is one of the most important rights.
That being said, it is in the Constitution. Is it that important though? I mean, you can petition our current
government all you want and they won't necessarily do anything. The Constitution doesn't say that the
government has to do anything in response. So what do you think?
The law suit they are pursuing seems entirely bogus to me. I don't think they have a chance in the world of
winning.
The right to petition for redress of grievances means that if you send the government a complaint or a
request, the government cannot use that as a basis for taking harmful action against you. Example: King
James (the reprobate King) received a petition from about 1000 Puritan pastors around 1608. He held a
conference to consider their petition. He used the petition as a weapon against these Puritans and said that
they would lose their jobs or their heads if they didn't give up the ideas represented in that petition. That is
the exact kind of thing our First Amendment was designed to prevent.
Any debate with Libertarians has to deal with the foundations of their belief and not the application of their
belief to particular issues. If we are debating harms, we have accepted their premises and they will have the
superior position in the debate.
The core question is: “what is the purpose of government?” Can government legitimately act for the common
good? Can the government protect moral principles for their own sake--actually in the belief that the moral
fabric of the society is a legitimate interest of the government?
True libertarians do not believe in public parks or libraries or schools or any kind of government services of
this sort. They do not believe in the common good, only the individual good. Government exists only to
protect the individual's right to life, liberty, and property.
This presupposition cannot be found in the Bible. The Bible makes it clear that one of the purposes of law is
a school master to teach right and wrong. Libertarians would never agree with such a goal. Prostitution would
be an example of that. Libertarians would allow prostitution to be legal. Biblical moralists would never allow
such a practice because it is harmful to the community. Indeed, in the book of Leviticus it says that certain
kinds of sins make the land itself polluted and eventually vomits.
The purposes of government include the protection of life, liberty, and property. But it also, in the words of
the Constitution exists to promote the common good and general welfare. Libertarians do not believe that.
Thus, despite the claim of many to be constitutionalists, if they reject the very goal of the Constitution how
can they make such a claim?
So, I looked it up online and found their website. http://www.sss.gov/Default.htm I found out every guy has
to register and it is considered a felony if you don't. I have this "gut feeling" that it isn't, or shouldn't be
constitutional.
I've tried to think of it in accordance with original intent. For instance, there were militias in the early US, but
they didn't go overseas. The militias were also organized by the states not the federal government.
I don't know, it just doesn't seem right. Our nation is a democratic republic-we are free men. I don't think it
was intended that if our government got us in a war we didn't want to be in, they could force us to fight for
them.
We are not subjects who have no voice or rights. We have rights. We have a voice. We have duties. One of
these duties is to pick up a gun and defend this nation.
Get everyone you know to go to this website and sign up to be a citizen co-sponsor. We need 3.4 million
citizen co-sponsors to reach our goal. If each of you in this class would get just 34,000 people to sign up we
would be there. Or, if we got all members of HSLDA to get 40 members, then we would be there. Try getting
40 people to sign up--you will be a hero.
I believe that original intent analysis (as done by the DC Circuit in the recent case) shows that the Second
Amendment protects an individual right and that this right is fundamental. Fundamental rights are not
absolute--but they are strong.
The overarching purpose of the Second Amendment was to be sure that citizens had weapons to suppress
tyranny. I think this yields a nearly unlimited right to possess personal weapons. However, the definition of
personal weapons (comparing it to the weapons possessed by militia members in 1791) would not give an
individual the right to have rocket launchers or tanks or nuclear warheads. But, I think the right to have all
manner of rifles and handguns would be protected. This assumes we are talking about citizens who are not
convicted criminals.
B. Quiz Questions
The Court said that the Union existed before the Constitution....this means that the Union (the United States
of America) came into effect before the Constitution. I have no idea why this should be confusing since you
should know that the US existed at least since the Declaration of Independence.
Even before the Declaration.....this was the part that might be new information for you, but it seems clear to
me. The states begin to act as a union before they issued the Declaration of Independence. This was clear
in the Court's discussion and you should have known the basic facts already. After all, we started fighting in
April 1775, the Continental Congress was in full swing, etc.
The Court's assertion---that is that the Union existed before the Constitution and Declaration--related
to....and you must pick the correct choice by reading the relevant material.
b. The dissent. Both abortion and homosexual conduct should be protected because liberal legal scholars
think the court should label them both as fundamental rights.
I'm sorry. I really don't understand why that would be the right answer. I thought OI would say that both
abortion and homosexual conduct should NOT be protected. I don't get why the correct answer is b. I'm
sorry- I may be just reading the question or answer wrong or not understanding its meaning or something,
but would you mind explaining this to me??
Student input from ALICIA McCLURG:
I think that the question is, If Roe's precedent were followed, what should Bowers' rule have been? The
majority claimed that Roe's precedent was followed, but came up with an inconsistent ruling. The dissent
says, if Roe's precedent had been followed, then Bowers should have protected homosexual conduct. And
the dissent is right - if the SCT had followed Roe, then Bowers would have been decided differently. Probably
you could ask the question this way... "Which is consistent with Roe - the majority or the dissent? Why?"
In the Constitutional Law Audio CD (5:45 - 6:30)it was specifically stated that Drugs, Prostitution, and
Pornography are laws based purely on "morality". Based on that, I incorrectly assumed that the only option
not mentioned on the CD(same-sex marriage) had to be the correct answer. Could you please explain the
reasoning behind this question?
Subcommittee Hearing on
“What is Needed to Defend the Bipartisan Defense of Marriage Act of 1996?,”
September 4, 2003
226 Dirksen Senate Office Building
2:00p.m.
The task I have undertaken today is an aspect of legal practice that is difficult at best. I am called upon to
make predictions about what may happen to the federal Defense of Marriage Act in light of predictable legal
challenges to its constitutionality. The maxim of the stockbroker seems appropriate, “Past performance is no
guarantee of future results.” But lawyers for private clients are often called upon to predict what may happen
in the course of litigation so that their client can assess the risks they are about to assume.
No one can say for certain what the outcome will be of constitutional challenges to the Defense of Marriage
Act. As much as I would like to see it held to be constitutional, and while I can construct a credible legal
argument to support that outcome, a lawyer must give weight to other factors to make a reasonable
prediction of what may happen. These other factors certainly include trends in the law and the dominant
scholarly view of the issue at hand.
The constitutionality of the Defense of Marriage Act cannot be seriously challenged until one state legalizes
same-sex marriage. Thus, the fact that DOMA has not been judged unconstitutional to this point tells us
nothing about its long-range prospects when faced with a proper legal challenge.
It may be instructive to review the circumstances which are required before a proper challenge to DOMA can
be raised. If the Supreme Judicial Court of Massachusetts, the Supreme Court of New Jersey, or the
supreme court of some sister state, rules that same-sex marriages are required under their respective state
constitutions then the stage is set. Couples who are married in the wake of one of these rulings will then
seek to move or return to another state and have that marriage recognized. If the second state wants to
recognize that same-sex marriage, DOMA does not prevent such recognition. However, it the second state
refuses to recognize the out-of-state same-sex marriage, then the argument will be raised that the Full Faith
and Credit Clause requires its recognition. The state will then employ DOMA as a part of its defense against
such a constitutional challenge.
If we assume that a proper challenge is mounted, what then is the likely outcome?
Again, I can argue, and do below, that DOMA should survive such challenges. But let us consider the legal
trends and the dominant scholarly view as criteria for judging what the courts are likely to do on this issue in
the foreseeable future. I will consider these two categories separately.
A. Legal Trends
The flow of a river might be an appropriate metaphor to assess the strength of a legal trend. Six months ago,
the legal trend in favor of a successful constitutional challenge to DOMA might well be described as a small
stream. The principle case in this era was Romer v. Evans, 517 U.S. 620 (1996). In Romer, the voters of
Colorado enacted an initiative that limited the ability of citizens to obtain legal protections in civil rights laws
on the basis of sexual orientation. The Supreme Court held that this law was based upon a clear animus
toward homosexuals and violated the principles and requirements of the 14th Amendment’s Equal Protection
Clause.
It is one thing to hold that a recent law with a particular political background possesses such a clear and
intentional animus. It is quite another thing to hold that a state’s marriage law that has been on the books for
decades if not centuries possesses the same unconstitutional animus.
As we shall see in the next section, the legal commentators jumped to the conclusion that Romer presaged
or required judicial rulings in favor of same-sex marriage and against the constitutionality of DOMA. But a
careful lawyer would look upon such predictions with a decree of skepticism because Bowers v. Hardwick,
478 U.S. 186 (1986), was still good law and was not explicitly reversed by Romer. A distinction could be
made. Romer was about political rights, not gay rights. Bowers held that there was no constitutional right to
engage in homosexual sodomy and therefore the law stood with long-standing traditions of marriage as a
uniquely heterosexual institution.
That was before June 26, 2003 when the Supreme Court released its opinion in Lawrence v. Texas, 123 S.
Ct. 2472. The legal trend is no longer a small stream. It is a river raging with floodwaters, and not just any
flood, but the hundred-year flood against which all future events will be judged.
At issue in the Lawrence case was the nature of liberty as set forth in the due process clause of the
fourteenth amendment. In considering whether this clause of the Constitution was violated by the Texas
statute, the majority, quoting from a dissent from Justice Stevens in an earlier case, declared that “the fact
that the governing majority in a State has traditionally viewed a particular practice as immoral is not a
sufficient reason for upholding a law prohibiting the practice.” Lawrence, 123 S.Ct. at 2475.
Let me put this proposition another way: the Supreme Court has determined that the traditional views of the
majority of the people of this country are not good enough to justify our law. I should note at this point that
this now largely irrelevant majority was the same majority which drafted, ratified, and from time to time
amended the freedom-granting constitution the court is interpreting. If you think about it, this is astounding.
Under the “reasoning” of the court, how can we know with any certainty what is legally right and what is
legally wrong? How can we know what our Constitution, or any of its amendments, really means? How will
we know what will be persuasive in a court of law?
In the Lawrence case, the majority notes that the European Court of Human Rights did not follow our earlier
jurisprudence, but followed its own decisions.
Lawrence, 123 S. Ct. at 2483. (citing Dudgeon v. United Kingdom, See P. G. & J. H. v. United Kingdom, App.
No. 00044787/98, ¶56 (Eur. Ct. H. R., Sept. 25, 2001); Modinos v. Cyprus, 259 Eur. Ct. H. R. (1993); Norris
v. Ireland, 142 Eur. Ct. H. R. (1988)).
Are we now to turn to Europe to ascertain the nature of our own constitution? If we cannot turn to our own
heritage and the intent of the drafters of our constitution and its amendments, where really can we turn at all?
What is left as the basis of law other than what the judges feel on a particular day?
And this is why none of us here can say with any certainty what the future of DOMA really is.
The dramatic change in the flow of water in this particular stream has been noted by both those who support
and those who oppose the Lawrence decision. MNSBC reported:
Speaking shortly after that ruling, Elizabeth Birch, the executive director of the leading gay rights
advocacy group, the Human Rights Campain, said, “Every once in a while in the history of a people
there is a monumental paradigm shift. …it allows for a breakthrough to a deeper understanding to a
nation as a whole. I believe we are in such a gay moment in terms of history.
Matt Foreman, the executive director of the National Gay and Lesbian Task Force wrote:
In just a few short weeks, the confluence of legal marriage in Canada, the Lawrence v. Texas
decision abolishing sodomy laws, and the expected marriage ruling from the Massachusetts
supreme court has dramatically altered the national and intra community debate about our lives, our
families, and our legal rights.
But the most dramatic prediction of the impact of Lawrence is found in the pages of that decision in Justice
Scalia’s strong dissent.
One of the benefits of leaving regulation of this matter to the people rather than to the courts is that
the people, unlike judges, need not carry things to their logical conclusion. The people may feel that
their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but
not strong enough to criminalize private homosexual acts--and may legislate accordingly. The Court
today pretends that it possesses a similar freedom of action, so that that we need not fear judicial
imposition of homosexual marriage, as has recently occurred in Canada (in a decision that the
Canadian Government has chosen not to appeal). See Halpern v. Toronto, 2003 WL 34950 (Ontario
Ct. App.); Cohen, Dozens in Canada Follow Gay Couple's Lead, Washington Post, June 12, 2003, p.
A25. At the end of its opinion--after having laid waste the foundations of our rational-basis
jurisprudence--the Court says that the present case "does not involve whether the government must
give formal recognition to any relationship that homosexual persons seek to enter." Ante, at 17. Do
not believe it.
There is a recognized branch of Full Faith and Credit law that has been directly and seriously undermined as
a result of the decision in Lawrence. States have not been required to recognize decisions or decrees of
other states if a strong state public policy interest prohibited such recognition. The constitutionality of
Congress’ powers under Article IV to enact DOMA is also in accord with the wide-spread view that even
absent congressional action, there is already a "public policy" exception to the Full Faith and Credit
requirement. According to the Restatement (Second) of Conflict of Laws Sec. 283 (1971), a state that had a
"significant relationship to the spouses and the marriage at the time of the marriage" need not recognize a
marriage if the marriage contravenes "the strong public policy" of that state.
In Lawrence, the Supreme Court adopted the utterly unprecedented notion that a law cannot be held to be
constitutional in the face of a substantive due process challenge if the state’s interest in enacting the law was
nothing more than traditional morality.
While lawyers can make arguments about anything and find state interests that never entered the minds of
the legislators who made the law, any honest person would say that laws prohibiting same-sex marriage, just
as laws prohibiting bigamy, were based on traditional majority views of morality.
Accordingly, it will be difficult for a court to accept an argument asking for a public policy exception to the Full
Faith and Credit Clause when that public policy is based on a motivation that has been labeled by the
Supreme Court as violative of Equal Protection.
Let me be clear about my own views of proper constitutional interpretation, which is quite a different inquiry
from what is predictable outcomes of constitutional litigation.
The Supreme Court in Lawrence cannot plausibly be said to have interpreted the 14th Amendment in a
manner that is consistent with the original meaning of the words that compose the clauses of that
Amendment.
The Bowers Court got the history right. The power of the states to legislate regarding sexual crimes outside
of marriage was unquestioned at any relevant point in American history. To be sure there were contrary
theories of history presented in briefs of the amici in Lawrence that were largely accepted by the Supreme
Court.
The idea that anti-sodomy legislation is of recent duration and a change from a much more tolerant era of the
late 1700s and early 1800s is nothing more than a mix of advocacy and wishful thinking with a thin veneer of
Ivy League scholarship. Anywhere else it would be called “spin” and recognized for what it is.
The attitude of that era is far better captured in the following language by James Wilson, who said, “The
crime not to be named, I pass in a total silence.” James Wilson, 2 The Works of James Wilson (1967) (from
lectures given in 1790 and 1791).
This is not to say that the states were not free to adopt new positions on matters concerning homosexuality.
The political trends have been strongly in favor of the gay movement.
But the Supreme Court is not supposed to be a venue in which political trends are translated into judicial
edict. The theory of judicial review necessarily depends upon faithful adherence to the meanings and
intentions of the drafters of the Constitution and its amendments for any claim to legitimacy in a constitutional
republic.
Simply stated, in a democratic republic only the legislative branches may legitimately make law. New
political paradigms should never been accomplished by a judicial decision. When a court announces a
decision that is contrary to the intentions of the framers of the Constitution, it is engaging in raw judicial
legislation which any member of the founding generation would label as tyranny.
Only our elected legislative officials have the authority to make new law. Lawrence is new legislation in
diaphanous cloak of legal interpretation.
Only those people who value a particular transient political goal more than the preservation of American
democracy should be pleased with this outcome. Self-government is essential to the preservation of all of
our liberties. This nation was founded on the notion that self-government is essential to liberty. Establishing
a pet theory of liberty at the expense of the fundamental principle of self-government threatens the long-
range survival of our Constitution. The American people will not long accept the idea that fundamental policy
change can be made by anyone other than their elected legislators.
In the Nebraska Law Review, Paige E. Chabora argues that a textual interpretation of the Full Faith and
Credit Clause will necessarily result in a determination that DOMA is unconstitutional. Ms. Chabora
advances two theories: the procedures theory and the “ratchet” theory. The procedures theory is that
Congress may only regulate the procedures by which judgments and decrees are recognized and may not
regulate substantive law through this particular enumerated power. The ratchet theory is based on a
comment in dicta in a 1980 Supreme Court decision. Thomas v. Washington Gas Light Co., 448 U.S. 261,
272 n.18 (1980):
While Congress clearly has the power to increase the measure of full faith and credit that a State
may accord to the laws or judgments of another State, there is at least some question whether
Congress may cut back on the measure of faith and credit required by a decision of this Court.
This “ratchet” theory is labeled “a powerful argument” in DEVELOPMENTS IN LAW AND POLICY: Emerging
Issues in Family Law, Michael T. Morley, Richard Albert, Jennie L. Kneedler, Chrystiane Pereira, 21 Yale L. &
Pol'y Rev. 169, 195 (2003).
Professor William Eskridge of Yale, who authored a prominent brief in Lawrence, predicts the ultimate
demise of DOMA in the New York University Law Journal. After describing a very modest path of the gradual
enactment of Vermont-styled civil unions, Eskridge says:
“Over time—perhaps a generation or two—enough states may follow this modest step to persuade the U.S.
Supreme Court to make it mandatory for the country. And at that point, if not before, DOMA's requirement
that federal law discriminate against same-sex couples will be constitutionally vulnerable.”
NO PROMO HOMO: THE SEDIMENTATION OF ANTIGAY DISCOURSE AND THE CHANNELING EFFECT
OF JUDICIAL REVIEW, William N. Eskridge, Jr., New York University Law Review, 75 N.Y.U.L. Rev. 1327,
1396 (2000).
The University of Pittsburgh calls DOMA “an embarrassment” and “the antithesis of a full faith and credit
measure.”
[LOVING THE ROMER OUT FOR BAEHR: ON ACTS IN DEFENSE OF MARRIAGE AND THE
CONSTITUTION, Mark Strasser, University of Pittsburgh Law Review, 58 U. Pitt. L. Rev. 279, 279 (1997).]
Capital University Law Review subjects DOMA to a scathing analysis calling it a “mean-spirited enactment”
but reserves the final conclusion as to its constitutionality to the reader.
[Some Observations about DOMA, Marriages, Civil Unions, and Domestic Partnerships, Mark Strasser,
Capital University Law Review, 30 Cap. U.L. Rev. 363, 366 (2002).]
The University of Pennsylvania Law Review doubts that DOMA represents “general legislation” that is,
according to the article, a requirement for any proper use of the Full Faith and Credit Clause.
[THE MEANING OF "GENERAL LAWS": THE EXTENT OF CONGRESS'S POWER UNDER THE FULL
FAITH AND CREDIT CLAUSE AND THE CONSTITUTIONALITY OF THE DEFENSE OF MARRIAGE ACT,
Julie L. B. Johnson, University of Pennsylvania Law Review, 145 U. Pa. L. Rev. 1611 (1997).]
The New England Law Journal opines that DOMA violates the equal protection value of the Fifth’s
Amendment’s Due Process Clause.
[The Constitutionality of the Defense of Marriage Act in the Wake of Romer v. Evans, Barbara A. Robb, New
England Law Review, 32 New Eng.L. Rev. 263 (1997).]
The University of Kentucky Law Review says: Because the words of DOMA, at least regarding interstate
recognition, are permissive rather than mandatory, the statute appears to offer nothing beyond a "sense of
Congress" which is non-binding.”
[Vermont Civil Unions, Full Faith and Credit, and Marital Status, Lewis A. Silverman, Kentucky Law Journal,
89 Ky. L.J. 1075, 1099 (2000).]
Finally, the Michigan Journal of Gender and Law, calls DOMA an unconstitutional establishment of
fundamentalist Christianity.
[DOMA: AN UNCONSTITUTIONAL ESTABLISHMENT OF FUNDAMENTALIST CHRISTIANITY, James M.
Donovan, Michigan Journal of Gender & Law, 4 Mich. J. Gender & L. 335 (1997).]
There are more articles to the same effect. The voices in opposition are essentially silent.
It is not a stretch to say that the dominant reviews in today’s law reviews will more than likely be the
dominant view in the courts within a generation. I am dubious that DOMA will survive even a few years. I am
absolutely certain that it will not last a generation.
I would like to see DOMA succeed. Setting aside, for the moment, my concerns over the changing nature of
law and its effect on predictability, I also think that, given a fair read, that DOMA is constitutional.
Marriage is one of the foundations which the majority of people in the United States cherish. Even the
Supreme Court has described traditional marriage as a "basic civil right." Skinner v. Oklahoma, 316 U.S. 535,
541 (1942). It is "fundamental to our very existence and survival" and being a revered institution "older than
the Bill of Rights -- older than our political parties, [and] older than our school system." Loving v. Virginia, 388
U.S.C. 1, 12 (1967).
Article IV of our Constitution provides that full faith and credit shall be given in each State to the public
proceedings of every other state, and that, and this is the critical issue: “Congress may by general Laws
prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof.”
Const. Article IV.
The power here established may be rendered a very convenient instrument of justice, and be
particularly beneficial on the borders of contiguous States, where the effects liable to justice may be
suddenly and secretly translated in any stage of the process within a foreign jurisdiction. [The
Federalist, No. 42, at 271 (James Madison) (Clinton Rossiter, ed., 1961).]
Congress has only exercised its Article IV § 1 authority four times. In 1790, Congress codified the functions
of the Full Faith and Credit clause (28 U.S.C. § 1738). In 1980, Congress passed the Parental Kidnapping
Prevention Act (28 U.S.C. § 1738A). In 1994, the Full Faith and Credit Child Support Orders Act of 1994 (28
U.S.C. § 1738B) became law. Finally, in 1996, Congress passed DOMA.
Congress’s exercise of its authority to legislate under the Full Faith and Credit Clause has never been
successfully challenged in any court. Since there is no legal precedent by which the constitutionality of
DOMA can be measured, the best available standard is found in these prior acts of Congress.
The law of 1790 was merely procedural in character. It does not serve as a precedent for DOMA. However,
the 1980 and 1994 establish clear legislative precedents that demonstrate that Congress is fully within its
authority to enact DOMA.
Both of these prior enactments deal with disputes arising in the area of family law. Both of these statutes are
closely connected to the legal issues of marriage. The 1980 Parental Kidnapping Act was designed to bring
national uniformity to the recognition of child custody decrees. Citing a growing number of cases which
involved interstate disputes over child custody decrees and the alarming practice of “frequent resort to the
seizure, restraint, concealment, and interstate transportation of children,” Congress passed this law to
determine which decrees would be given full faith and credit.
Congress made a substantive policy decision child custody decrees would not be granted full faith and credit
if the child had not lived in the forum for at least six months prior to the events in question. 28 U.S.C. §
1738A(b)(4) and (c)(2). A supplemental rule was adopted governing residency questions when the child had
been removed from his home state by a contestant to the proceeding, i.e., parental kidnapping.
§1738A(c)(2)(A)(ii).
The 1990 enactment was designed to settle disputes between states over which decrees granting child
support would be enforced. 28 U.S.C. §1738B. Similar policy questions were answered to bring uniformity to
a hopelessly conflicted area of litigation.
There is nothing in the language or history of Article IV § 1 that would indicate that Congress must wait until
there is a morass of existing cases and numerous bad experiences to bring peace and uniformity to the
interstate practice of family law. In enacting the Defense of Marriage Act, Congress has acted preemptively
to settle problems before they arise. Congress either has the power to establish rules concerning the full
faith and credit recognition of family law acts of the several states or it does not. There is no logical basis for
concluding that, on the one hand, Congress can decree that child kidnapping shall never form the basis for a
valid custody determination, while Congress is powerless to dictate which marriages shall be deemed valid
for the purposes of full faith and credit recognition.
Advocates of same-sex marriage will argue that there is a world of factual difference between such a
marriage and parental self-help in a custody dispute. Such differences may indeed make a difference to
courts in evaluating equal protection challenges to DOMA, but they should have no effect on a determination
of whether Congress had the authority to act under Article IV § 1. Congress has made a policy decision
concerning the recognition of valid decrees concerning the custody of children. It can certainly make other
policy determinations connected to the interstate recognition of other decrees and acts of other aspects of
family law.
The Congressional Research Service opines in its exhaustive The Constitution of the United States of
America: Analysis and Interpretation,
[I]t does not seem extravagant to argue that Congress may under the clause describe a certain type
of divorce and say that it shall be granted recognition throughout the Union and that no other kind
shall. Or to speak in more general terms, Congress has under the clause power to enact standards
whereby uniformity of state legislation may be secured as to almost any matter in connection with
which interstate recognition of private rights would be useful and valuable. [Id. at 870.]
DOMA should be construed consistently with the laws concerning uniformity of custody decrees and child
support awards. Congress can declare which decrees are enforceable in other states and which are not.
Congress could, consistent with this legislative precedent, say that same-sex marriages will not be
recognized in the United States by any jurisdiction other than the one in which it was originally performed.
Congress has taken a much more modest approach. All it has said is that sister states are not compelled to
recognize such marriages.
In my view, DOMA is perfectly consistent with the precedent created in the legislative history and should be
held to be constitutional.
Conclusion
There are times when a prudent lawyer should take his client aside and say, “there are significant forces
arrayed against you that have been extraordinarily successful in similar recent litigation and their arguments
need to be taken very carefully. You may want to find another way to achieve your real objective.” If the
elected legislative representatives of this nation truly what to defend traditional marriage against an assault
from the forces of judicial activism, then it seems apparent that another vehicle other than DOMA must be
found.
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