Dianne Feinstein and a lit match

Did Feinstein Cast the Stone That Strikes the Match?

I never was very good at using a stone flint to start a fire, but by casting a “stone” at Brett Kavanaugh, Senator Feinstein may have thrown the flint that starts the fire that burns down what’s left of our Republic.

As I watched the unfolding of the events last week surrounding the accusation that thirty years ago an allegedly inebriated high school student by the name of Kavanaugh had tried to force himself upon a fellow female student at a party, I couldn’t help but think of two different stories—the burning of Rome, and the story of how Jesus dealt with the woman caught in adultery by the local Pharisees.

Rome’s Burning Aids Nero

We’re probably all familiar with the story that Rome burned while Emperor Nero played his fiddle. Though veracity of his fiddle concert is historically questionable, it is true that Nero was power-hungry and ambitious.

One of his most grandiose plans was to tear down as much as a third of Rome in order to build an elaborate series of palaces to be known as Necropolis. The senate, however, objected ardently to this proposal.

We don’t know if the fire was Nero’s form of “slum” clearance, but we do know the conflagration allowed for the construction within the city of Domus Aurea, Nero’s majestic series of villas and pavilions as part of a landscaped park and a man-made lake.

Feinstein May ‘Burn’ More Than Kavanaugh

Whether Feinstein and her Democratic colleagues intend to torch only Kavanaugh’s confirmation or use this last-minute fireball to burn the structures that form our Republic so they can build a new structure more to their liking, I don’t know.

But I do know that the maintenance of our increasingly fragile Republic depends on good, honorable people being willing to serve in public office. But who, in the years to come, will be willing to serve if any moral failing more than 30 years in the past and, moreover, in the context of one’s youth, will be ushered before the public eye with the candidate’s wife and children in tow?

I ran for office 24 years ago this summer and I remember, even then, before the incredible partisan ugliness of today, having to think through what I may have done or said during the first 36 years of my life that would make running not worth the potential for embarrassment and public shaming.

Thankfully, a few scuffles—“boys being boys,” if such is okay to say anymore, that took place while attending an all-boys school—were the worst of my visible sins. I knew I was clear in regard to drugs, alcohol, and women. But I had to replay my life to that point just to make sure.

But today our politicians are not beyond getting people to fudge the truth or lie outright if it will serve their purposes. Now, I’m not saying such is the case with Kavanaugh’s accuser, and if her allegations are true, then strong consideration should have been given to criminal sanctions against him. But Feinstein’s motivations are sure questionable given the time she’s had to bring up these accusations and have them evaluated.

The Point With the Woman Caught in Adultery

Which brings me to the story of Jesus and the adulterous woman outlined in John 8:1-11. Familiarity with the story has obscured part of its moral force. Jesus was not letting the woman off the hook with regard to being accountable for violations of the moral law, as many today are wont to say, but rather putting the Pharisees on the hook for their own failure to keep the moral law.

That’s why when Jesus told those of the Pharisees who were without sin to cast the first stone, they all walked away. We like to think we’re righteous, and to justify our righteousness, we compare ourselves to others, rather than the real standard—God’s law. Under that standard, we’re all condemned. But the Pharisees, though they knew they stood condemned, left, leaving for the woman mercy and grace they, too, needed.

The grace of God is the hardest thing in the world for sinful, self-righteous people to understand. In fact, they don’t understand it. Only those who, by grace, have come to see just how Holy God is and how far short of that holiness they fall have experienced it.

Ironically, those who haven’t experienced grace are usually the ones who want to throw the stones, though Christians do the same thing when they lose sight of the “breadth and length and height and depth of grace” (Ephesians 3:18) and embrace again the notion that the Christian life means gritting their teeth and making themselves righteous (Galatians 3:3).

Are Any Senatorial Pharisees Casting Stones?

Bringing up a singular act more than 30 years ago that, even if true, clearly does not reflect on the current character of Kavanaugh or the course of his life since that time makes me wonder about all those senators, Democrat and Republican alike, who think this should now disqualify him from service.

I suspect that most, if they are honest, have something in their distant past that, if revealed, such as accuser Senator Corey Booker’s teenage sexual groping escapade, would be at least highly embarrassing if not constitute an outright moral failing. But unlike the biblical Pharisees, these senators are arrogant enough to throw the stone.

But if the stone they are casting at Kavanaugh is flint and it “hits” their mark, it could just cause the spark that burns down the shaky but vital bridge between maintaining our Republic and the willingness of decent, honorable candidates to run for office if they have even one moral failure in their remote past.

If so, we may soon find ourselves left with a choice between two power-hungry candidates who care more about the power they hope to gain than any damage their already damaged character may sustain.


David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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painting of the signing of the U.S. Constitution

What Will Next Week’s Constitution Day Celebrate?

September 17th is a special day, designated by Congress as Constitution Day. It’s the date, when, in 1787, following a speech by Benjamin Franklin, 39 delegates to the Constitutional Convention endorsed and submitted our Constitution to the Congress of the Confederation. It was then the crowning achievement in the art of civil government, but perhaps it would now be appropriate to set aside another special day in connection with it.

I am no expert historian when it comes to the origin and development of civil government and the more modern concept of the state, but I do believe most would agree that the U.S. Constitution articulated what was then the most profound structure of civil government and set of guiding principles ever reduced to pen and paper.

But, today, too few know much about how our Founding Fathers intended for that structure and those principles to work, and few of our Founding Fathers would today recognize what we understand our Constitution to be. For one thing, our Founding Fathers would have never imagined that the other two branches of the federal government or that the governments of the states would now be so obliging and deferential to the dictates of the U.S. Supreme Court.

The U.S. Supreme Court’s Lie

Space does not allow me to recite some of the conflicts that have arisen when the other political bodies in our country thought the U.S. Supreme Court was out of line. But, for the most part, that all changed on another September day, the 12th, back in 1958, when the U.S. Supreme Court unanimously agreed to assert a lie as the law of the land.

It was on that day that the U.S. Supreme Court, in response to the school integration issues still taking place in Arkansas following Brown v. Board of Education in 1954, said, “the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.” The case was Cooper v. Aaron.

Years later, former U.S. Attorney General Edwin Meese, referring to Cooper, correctly said, “Constitutional interpretation is not the business of the court only, but also, and properly, the business of all branches of government.” Meese further correctly said the decision in Cooper was “obviously . . . binding on the parties in the case; but the implication that everyone would have to accept its judgments uncritically, that it was a decision from which there could be no appeal, was astonishing.”

Cooper’s assertion and our failure to teach our children any differently has led to the myth of judicial supremacy and to what Meese called the era of the “imperial judiciary.”

To make such matters worse, one current justice on our U.S. Supreme Court has been willing to express publicly her disdain for our original Constitution, Ruth Bader Ginsburg. She told the people of Egypt back in 2012, when they were drafting their own governing documents, that she “would not look to the U.S. Constitution if [she] were drafting a constitution in the year 2012.” She recommended things like the European Convention on Human Rights.

How Did We Get Here?

To appreciate what has happened from 1787 to now, we have to understand that the U.S. Constitution was framed in the context of a certain view about the nature of the cosmos, namely, that it was the Creation of God and that there were laws given by the Creator by which the civil government’s laws, including the U.S. Constitution, would be understood, interpreted, and applied.

But in 1938, in another case, Erie Railroad v. Tompkins, the U.S. Supreme Court followed the lead of atheist Justice Oliver Wendell Holmes and jettisoned this previously held understanding of the cosmos and law. There is no such transcendent law, the Court said. Not surprisingly, 77 years later, we learn that a Constitution loosed from its original mooring embodies a “liberty” to have a state license a relationship between two men as a “marriage.”

A New Constitution Day?

The Constitution, of course, is still with us. However, because the words of the 1787 Constitution we are supposed to be celebrating are no longer understood and interpreted according to the context in which they were originally used, we really no longer celebrate that Constitution. That Constitution passed from the scene on September 12, 1958.

Maybe Congress should set aside that day both to memorialize the old Constitution and to celebrate the new one we have allowed the U.S. Supreme Court to “adopt” for us.


David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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Brett Kavanaugh, the U.S. flag, and the U.S. Supreme Court building

Is America Still ‘the Land of the Free and the Home of the Brave’?

The antics associated with misnomered “hearings” on the confirmation of Brett Kavanaugh to the U.S. Supreme Court demonstrate why the last line of our national anthem, “The Star-Spangled Banner,” might more accurately refer to America as the ‘land of the un-free, because we’re home of the uncourageous.’

We Are Not Free When Governed by a Policy-Making Federal Judiciary

We not free as a body politic when a body of uncourageous people allows an unelected body of federal judges to degenerate into a policy-making body, particularly when they are prone to put their policies into constitutional cement by finding rights and limitations on elected bodies and on the people that just aren’t there.

When it comes to the U.S. Supreme Court, though, I’m not just talking about Justices Ginsburg, Kagan, Sotomayor, and Breyer, who, if collectively referred to as “Batman,” were most often joined in their social policy capers by their “Robin” sidekick, Justice Kennedy. I’m talking about Justice Roberts, too, who upheld Obamacare’s individual mandate as a so-called “tax” and then “interpreted” the words “state exchange” in Obamacare to mean “state and federal exchange.”

The ‘Body of the Cowardly’

But of whom do I speak when I refer to the “body of uncourageous people”? For the answer to this, I turn to one of the opening speeches in the Kavanaugh hearings, that of Senator Ben Sasse.

Let me bullet point Sen. Sasse’s statement for the sake of making it a bit more accessible. He said that:

• because the “legislature,” meaning Congress, “is impotent; the legislature is weak,”
• by which he meant that Congress doesn’t “do a lot of big political debating,”
• the people have sought for “a place where politics can actually be done,” and
• so “we,” meaning Congress, “have transfer[ed] it to the Supreme Court.”

Let me deconstruct this a bit, and you’ll have the answer to my question about the cowardly.

I agree with Sen. Sasse that Congress is weak, but it is not impotent, at least not constitutionally, to reverse the “transfer” of political power to the U.S. Supreme Court that it has allowed, though I think usurpation, rather than transfer, is sometimes a better word. There have been times when I think the U.S. Supreme Court has usurped power from Congress precisely because it sees Congress as dysfunctional and incapable of carrying out its duties.1 However, the Court must resist the urge to fix the political mess in which Congress finds itself; a breach or abandonment of constitutional responsibility by one branch is not cured by that of another.

Congress Is Not Impotent to Right the Balance of Power

As I’ve explained in the past, the framers of the Constitution envisioned the U.S. House impeaching and the U.S. Senate convicting federal judges for allowing the “order of the political system”—the proper allocation of powers among the three branches of the federal government and between the federal and state governments—to be “affect[ed]” to “any sensible degree.”

To understand that federal judges, and particularly Supreme Court justices, have affected that “order” beyond any “sensible degree,” we need only look at the extent of the disorder and nonsense taking place in the Senate Judiciary’s hearings on Judge Kavanaugh.

You would think by the Kavanaugh circus we have observed this week that we were appointing a ringmaster to the High Court of Heaven itself before whom all other governing bodies must bow and with respect to whom no one has any recourse. And, of course, since this Court, not the real High Court of Heaven, now holds the keys to life and death (abortion) and the “transcendent” meaning of marriage, that is what our senators are doing.

But let’s be honest; the use of the power of impeachment to reverse the flow of politics into the courts of the federal judiciary won’t happen, not just because the members of Congress who rail against “black-robed legislators” have a weak stomach for serious debate, but because they simply are not courageous enough to start a debate about it in the first place.

Even if those members of Congress (i.e., ostensibly Republicans) knew the power of impeachment had been given them for just such a time as this, I don’t think any of them have enough courage to file articles of impeachment on even the worst offenders, such as Judge Posner, who has publicly stated that he does not uphold the written U.S. Constitution, but what judges say about the U.S. Constitution. That, Judge Posner, is not what the oath you took says.

Moreover, these congressional members are not courageous, because, to be honest, most prefer to let courts decide critical issues instead of debating and deciding them for themselves. Doing that is politically risky and avoiding risk is what those lacking in courage do. Besides, beginning to impeach judicial usurpers of the policy powers of Congress would take away something these politicians can rail against during campaign season and for which they can solicit our financial support and vote. Impeachment of some of the worst usurpers of Congress’ policy-making powers or the usurpers of the powers of the states might make the issue of black-robbed legislators less important politically.

Members of Congress are the uncourageous body that has made us the land of the politically un-free. And they will not have the courage they need as “leaders” to impeach a few federal judges until we lead them.

That means more of us need to understand the problem, become aware of the remedy that’s available, and insist that those we elect gather up their courage and begin to use it. Only then can we be rightly called the land of the (politically) free and the home of the brave.

NOTES

  1. For example, I think that’s why Justice Roberts gave such an expansive reading to “state exchanges” in Obamacare. Had those words be given their plain meaning, Obamacare would have failed financially and practically, and no doubt he knew that Congress would have been too inept to replace it, as evidenced by ineptness of the Republican-led Senate after President Trump was elected.

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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gavel, portion of the Tennessee flag, and the U.S. Supreme Court

Will Tennessee’s Attorney General Lead the U.S. Supreme Court Showdown?

This week, Tennessee’s attorney general, Herbert Slatery, joined the attorney generals in 15 other states in filing an amicus (friend of the court) brief with the U.S. Supreme Court. As I read the brief, I wanted both to cheer and spit nails. I hope these words will serve the salutary purpose of having Attorney General Slatery (“General Slatery”) correct an egregious constitutional error in another matter that will hasten the constitutional showdown needed between the states and the U.S. Supreme Court.

The Sixth Circuit Merges Biological Sex and Gender Identity

The brief submitted by the attorneys general asks the U.S. Supreme Court to hear an appeal from a decision earlier this year by the U.S. Court of Appeals for the 6th Circuit. The appellate court held that the word “sex,” used by Congress in 1964 when it enacted Title VII’s regulations on workplace discrimination, now includes “gender identity” and “transgender” status. To appreciate the egregiousness of this ruling, a little history is in order.

Before 1955, it was uncommon to use the word gender to refer to anything but grammatical categories. But the attorneys general’s brief notes that in 1955, a terminological distinction was for the first time drawn by sexologist John Money between sex as a biological reality and gender as a societal role. Thereafter, the use of the word gender as distinct from sex became increasingly common.

Consequently, I applaud General Slatery for signing a brief that rightly says:

[A]t the time Congress enacted Title VII, “sex,” “gender identity,” and “transgender” had different meanings. Given all of the above, the use of the term “sex” in Title VII cannot be fairly construed to mean or include “gender identity.” The Sixth Circuit erroneously conflated these terms to redefine and broaden Title VII beyond its congressionally intended scope.

The brief goes on to point out how this error by the appellate court undermines two key constitutional principles that the attorneys general rightly seek to protect.

Protecting State Sovereignty

By the following italicized sentences, the attorneys general’s brief stresses the fact that the 6th Circuit, by rewriting the law, essentially took away from the states the power to decide for themselves what laws should govern the definition of gender and transgender and the relationship of those concepts to discrimination in their state’s workplaces:

It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. Under our federal system, the States possess sovereignty concurrent with that of the Federal Government, subject only to limitations imposed by the Supremacy Clause. States wish to safeguard the separation of powers undergirding our system of government, a system that encourages the States and the federal government to “control each other” through checks and balances. . . . Unless and until Congress affirmatively acts, our Constitution leaves to the States the authority to determine which protections, or not, should flow to individuals based on gender identity. The Sixth Circuit ignored this fact and essentially rewrote federal law, engaging in policy experimentation.

In other words, Congress did not mean to superimpose on the citizens of Tennessee definitions regarding gender and transgender and determine for us their relevance to workplaces in Tennessee, and courts can’t constitutionally impose that legislative policy on us.

Great job, General Slatery, for signing on to this!

Protecting the Legislative Branch’s Powers

In addition to protecting the sovereignty of the states from judicial encroachment, the attorneys general noted that the 6th Circuit had violated the division of powers that is supposed to exist between the legislative and judicial branches. The judicial branch is not to make public policy in its construction of a law.

To respect this constitutionally required separation, courts have long held that they must be very careful when it comes to interpreting words in law. The interpretation cannot effectively create a new policy, thereby usurping the Legislature’s singular power to determine policy. The Legislature or the people can always “fix” the policy in the law through the exercise of their own powers.

The attorneys general’s brief stated very clearly the two main principles of interpretation by which courts avoid violating the Legislature’s power over policy matters (numbers added for convenience):

Two primary canons of statutory and constitutional interpretation include the ordinary-meaning canon and the fixed-meaning canon. (1) The former canon instructs courts to give words their ordinary, everyday meaning, unless the context shows that they are to be used in a technical sense. See, e.g., Martin v. Hunter’s Lessee, 14 U.S. 304, 326 (1816) (“The words [of the Constitution] are to be taken in their natural and obvious sense, and not in a sense unreasonably restricted or enlarged.”). (2) The latter canon directs courts to give words the meaning they had at the time the document was adopted. (emphasis supplied)

By the italicized words below, you’ll see why the attorneys general’s brief said the 6th Circuit’s interpretation of “sex” as used in 1964 was so wrong:

When Congress enacted Title VII, virtually every dictionary definition of “sex” referred to physiological distinctions between females and males, particularly with respect to their reproductive functions. . . . Even today, “sex” continues to refer to biological differences between females and males. See, e.g., Webster’s New World College Dictionary 1331 (5th ed. 2014) (“either of the two divisions, male or female, into which persons, animals, or plants are divided, with reference to their reproductive functions”). . . Clearly, a biologically-grounded meaning of “sex” is what Congress had in mind when it enacted Title VII, and that is what the public at the time undeniably would have understood from its plain language. (emphasis supplied)

Great job! Point them to the dictionary, General Slatery.

Hoisted on the Double Edge of His Own Petard

The strength and correctness of the preceding argument means its opposite would be weak and wrong. But that’s exactly what General Slatery did last December in connection with the U.S. Supreme Court’s interpretation of the U.S. Constitution and marriage in its 2015 decision, Obergefell v. Hodges.

Most regular readers know that I am pursuing two lawsuits in regard to the constitutional limits that must be imposed by the states on the interpretation that should be given to Obergefell relative to state law. The argument is simple: The U.S. Supreme Court may declare a state law unconstitutional, but it cannot order a state official to license what state law has not authorized that official to license and that state law, in fact, forbids that official from licensing.

Such an interpretation of Obergefell constitutes judicial legislation imposing duties on state officials, not a judicial judgment restraining actions by state officials. Judicial legislation must be opposed at every turn, even when it comes from a court that has the word “supreme” in its name. That Court is not supreme over other power in this country, and to treat it as such is an offense to both state and federal constitutions and the people who adopted them.

Destroying Tennessee’s Sovereignty and State Constitution

I don’t have space to detail the arguments made in these two lawsuits. But General Slatery knows that if Obergefell is treated as having no power to order our state officials to do something, even though our state constitution forbids them from doing so, and if our state courts give the words “male and female” and “man and woman” in our marriage licensure laws their real and intended meaning, then those statutes are invalid.

My response: So what, if that’s what a proper construction of the judicial powers given the federal and state courts means under their respective state constitutions!

Let the people of this state understand and then deal, in the manner they think best, with the consequences of the U.S. Supreme Court’s constitutional malfeasance in deciding that the millennial-old definition of marriage now violates the U.S. Constitution; that’s how constitutions of divided powers are supposed to work.

General Slatery, when the U.S. Constitution becomes meaningless as respects the extent of the federal judiciary’s powers, then every other power in the U.S. Constitution and those of the states is, in principle, meaningless.

Please don’t be dissuaded from the conflict over the power the U.S. Supreme Court purported to exercise in Obergefell because the underlying policy issue is controversial. Don’t let our state’s sovereignty under the U.S. Constitution be destroyed.

Insist, too, that our state courts acknowledge the limits of their own power under the state’s constitution. Stop telling them that they are free to interpret “male” to mean “female” and free to substitute into our statutes a relationship defined without regard to the sex of the parties for one the Legislature specifically defined with regard to the sex of the parties. That is not the judiciary’s job to substitute into policy an objectively different kind of relationship for the one that is in the law, and according to quotes in your amicus brief, you know that.

The showdown between the states and the U.S. Supreme Court and between the legislative and judicial branches is long overdue. So, I remind you, sir, as Patrick Henry said on March 23, 1775, to his fellow citizens as battle loomed with a different, though similarly tyrannical, power, “The war is inevitable and let it come! I repeat it, sir, let it come.”


David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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‘Drag Queen Story Hour’ More Than Make-Believe

The latest educational fad arrived in Clarksville, Tennessee, last week. It’s “Drag Queen Story Hour.” Before it comes to your public library or the public school attended by your child or grandchild, you better understand what’s so insidious about this movement. Thankfully, there is a way to address this.

“Drag Queen Story Hour” or, in the case of the event in Clarksville, “Rainbow Reading,” is a movement by LGBT advocacy groups, the purpose of which is to “capture[ ] the imagination and play of the gender fluidity of childhood and give[ ] kids glamorous, positive, and unabashedly queer role models.” It targets children ages 3 to 8.

Proponents want public libraries and the libraries in our public schools to have gender-themed books. So, parents, be on the lookout for books like Jacob’s New Dress and Red: A Crayon’s Story.

The Usual Defense Defeats Itself

Here is one of the comments I saw on Facebook in defense of the program that was typical of so many:

Would it be different if it were “Halloween Costume Story Time? Do you let your kids dress up in costumes and pretend to be someone else for Halloween? There is no difference, except drag queens are really good at it. But we all know what this is really about . . . they are gay.

At first blush, this sounds like a response that would shut the mouth of the protesting parents who allow their children to dress up for Halloween. But the defense actually defeats itself. It acknowledges that this is not about “pretending to be someone else” but about being “gay.”

Note that the advocate admits this is about people who “are” gay, not someone, like a child at Halloween, who is pretending to be gay. Children may pretend to be Superman and Wonder Woman, but they do not assert that they “are” their favorite superhero and their parents certainly don’t tell them they “are.”

In other words, when we say a “person is gay” or certain people “are gay,” we are making a statement about “being,” about the nature of a person. It is an anthropological statement about what it means to be human, the nature of man and woman.

Discerning the Real Issue

This is not, therefore, a trivial or who-cares kind of thing. The answer isn’t just don’t take your child to “Drag Queen Story Hour” or let your child check out the books. If you think so, then just consider the definition of anthropology in even the most basic dictionary, Merriam-Webster online:

1: the science of human beings; especially: the study of human beings and their ancestors through time and space and in relation to physical character, environmental and social relations, and culture.
2: theology dealing with the origin, nature, and destiny of human beings.

The former definition is grounded in humanism—man is the center of the universe defining and giving meaning to what is found in the universe. It’s the “study of human beings.” The latter is rooted in our knowledge and understanding—the study—of God, as opposed to man, who by virtue of being God, defines and gives meaning to what is found in the universe.

The real issue then, as with really all issues, is who is in charge? Is it us or is it God?

If it is us, then a sufficient number of us can foist anything we want on the rest of us, at least until the foisted-upon say, “Enough.”

If it’s God, then there is no number of us sufficient to say to Him, “Enough.” Instead, God at some point says to us, “Enough.”

Addressing the Issue

Those of us who profess allegiance to the latter belief system have no choice but to voice our opposition to such events, particularly when directed at our children. We cannot believe that it is good and that it promotes human flourishing for society to encourage children to believe a lie about the nature of the universe and what it means to be human.

But what we voice must be grounded not in displeasure, dislike, or anger, but in our belief about the nature of man and our belief that “in him [God] we live, and move, and have our being” (Acts 17:28).

But in voicing our worldview, we must also insist that those who disagree state theirs clearly and not just object to ours. If man, not God, is the center of the universe, then we need to ask them on what basis those who are clearly in the minority among us can claim that they are more right than the majority?

However, until those opposed to this agenda are ready to engage our culture on the real issue, we’ll continue to live in a pretend universe of being.


David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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