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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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Implosion of LifeWay's Draper Tower in Nashville and a photo of the Tennessee state Capitol under construction

Some Legislators Work Through the Implosion of their Ivory Tower

I recently watched a video of the implosion of the LifeWay Draper Tower, a Nashville landmark associated with the Southern Baptist Convention. In the video, you can hear the explosion rumbling deep below, but nothing is happening. Then a few windows pop out. Next, the first floors begin to cave in, but the top floor remains rather steady. Then it, too, collapses. This video reminds me a lot of what I saw at the Tennessee Capitol this week.

As I spoke with some legislators about bills touching on issues related to human sexuality, it was clear to me that their perspective is like that of the person on the top floor of the LifeWay Draper Tower after the explosion first went off.

As these legislators sit on the upper-level floors of their really nice new offices in the Cordell Hull Building, some can hear a rumbling outside—talk about the impact of the gay rights agenda and same-sex “marriage” on the family and religious liberty. But it’s just noise to a number of them, a distraction from their work on job creation and education reform.

But that noise is the implosion of the foundation on which the state’s long-term welfare rests. The collapse of that welfare about which so many legislators crowed so proudly after Gov. Haslam’s State of the State speech on Monday night will come, in time, as surely as it came to the top floor of the LifeWay Draper Tower.

That foundation was referenced the next night by, of all people, President Trump, whose policies so many Tennessee Republican legislators say they want to emulate at the state level. “In America,” he said, “we know that faith and family, not government and bureaucracy, are the center of American life. The motto is ‘in God we trust.’”

Trump was right. But while many Tennessee legislators will give echo to those words when they speak to their constituents back home, their echo often gets drowned out when they are in Nashville. Here is an example of what I’m talking about.

Right now, state Attorney General Herbert Slatery has fully bought into the “gender identity” legal philosophy, which says there is no longer any male and female, at least when it comes to family law.1 As recently as December 13, his office argued that a state judge should interpret the word “male” to also mean “female” in one of our marriage statutes. Last summer in Knoxville, his office argued that the word “husband” in a birth certificate statute must be interpreted to mean or include a “wife.”

Our attorney general is helping our courts implode the very legal foundation on which God’s design for the family rests and, thus, embracing a faith alien to the majority of Tennesseans who believe God has made us male and female. And to make matters worse, his office is bypassing our elected legislators by insisting that judges impose these alien views on us.

I’m sure Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan could not be prouder of our attorney general.

What our attorney general is doing, and doing without any accountability to the people or even to any group of people directly accountable to the people, has highlighted a problem with our state Constitution. The unelected justices on the Tennessee Supreme Court appoint our attorney general.

Given that our law schools teach those who become our justices that Constitutions are “living” documents, are those justices even going to think twice about appointing an attorney general who will advocate for giving them the power to set public policy by finding new rights in our state Constitution and by reinterpreting unambiguous words in our state’s statutes?

For that reason, along with a few other good reasons, Sen. Ken Yager (R-Kingston) presented to the Senate Judiciary on Tuesday a resolution to amend the state Constitution. Under the amendment, the Legislature, accountable to us, would appoint the attorney general, the same as they appoint the state’s comptroller, treasurer, and secretary of state.

Three Republican state senators said they would vote to send the amendment out of the committee to the Senate floor for a vote, for which we’re grateful, otherwise it would have died right them. But they said they wouldn’t vote for it on the floor.

It seems that there are a number of legislators who are content with a system that has given us an unaccountable attorney general who is blowing up in our law what even President Trump recognizes as our foundation.

Someday the implosion will reach the seventh floor of the Cordell Hull Building where a number of them now sit, unconcerned with the “noise” going on around them, and then they will wonder what happened.

NOTES

  1. Of course, only a fool believes that this androgynous view of human nature will remain confined to family law once the attorney generals of our states and our state and federal judges finish laying that view of human nature into constitutional cement. Why should male or female matter in the workplace or the locker room at the Y if it doesn’t even mean anything in connection with the basic institution of the family that has historically anchored our view of what it means to be human?

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

FACT-RSS-Blog-Icon-small Get David Fowler’s Blog as a feed.

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silhouette of a man and woman reading newspapers with words press statement underneath on red background

David Fowler’s Remarks at the Marriage Lawsuit Press Conference

FRANKLIN, Tenn. (January 21, 2016) —David Fowler, Esq., attorney for the Constitutional Government Defense Fund, made these remarks at a press conference about the marriage lawsuit:

“At the heart of the declaratory judgment lawsuit filed today is the issue of who rules the people of Tennessee and, ultimately, all the people of the United States.

“Before I explain what this lawsuit actually asserts, let me be clear about what it does not assert. This lawsuit does not deny that the Supreme Court has the power of judicial review. It does not deny the power of a federal court to judge the constitutionality of a particular law. It does not deny that the Supreme Court ruled that our state marriage license law is invalid.

“And it is that point which leads to what this lawsuit does assert, namely, how does anyone, regardless of the sexes of the parties, get a valid marriage license pursuant to an invalid law?

“The Supreme Court appears not to have contemplated this issue. However, if marriage licenses can be issued notwithstanding the fact the Supreme Court declared the license law invalid, then it would appear that the Supreme Court is asserting a power to declare by judicial fiat a new statutory scheme in place of the old, rather than leaving it to the legislative branch to decide what should take the place of the scheme being stricken. This is not judicial review; this is legislating, a power denied under the state and U.S. Constitutions to the judicial branch under the doctrine of the separation of powers. This is also exactly what the Alabama Supreme Court pointed out in its decision on March 3rd of last year.

“Put another way, this lawsuit asserts the simple proposition that an invalid law is no law. And the power asserted by the Supreme Court is nothing less than a power, by court order, to enact or replace a law that it has ruled invalid. This is a legislative power and one that the Constitution, under the doctrine of separation of powers, denies to the judicial branch.

“That is why I believe Justice Scalia said in his dissenting opinion in Obergefell v. Hodges that the Obergefell opinion stands for nothing less than the proposition that ‘my ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.’ This power is one that the people of Tennessee, regardless of whether they are conservative or liberal, religious or atheists, dare not let the Supreme Court assert without raising the point, for someday the power exercised in Obergefell to judicially foist upon the people and their states a new statute will be used against them.

“Let me also address the process chosen by this lawsuit. It is one that is lawful and constitutionally contemplated under the concept of dual sovereignty reflected in the doctrine of federalism. It is not an unusual thing for a state court to be called upon to decide how a decision of the U.S. Supreme Court should be applied to a state law. The Alabama Supreme Court is now grappling with that issue. And, as you know, the case of Tanco v. Haslam, the actual lawsuit against Tennessee that was consolidated for decision purposes with the lawsuits in Kentucky, Michigan, and Ohio, did not involve the Tennessee laws governing marriages performed in state and involving state residents, only the validity in Tennessee of marriages contracted by non-residents of Tennessee who subsequently move to Tennessee.

“Should the Tennessee courts rule that the Tennessee marriage license law is invalid, then the Legislature can decide, what, if anything it wants to do. And if there are those who do not like what the Tennessee Legislature does at that time, then they can bring their own lawsuit to have the Supreme Court of the United States address the conflict between our court’s decision, the Legislature’s response to it, and Obergefell. That is how the legal process works in a nation of dual sovereigns under the principles of federalism and separation of powers.

“We firmly believe that the courts of Tennessee will follow the law the Tennessee Supreme Court has laid down on how to interpret statutes that have been ruled unconstitutional and will respect the separation of powers and the principles of federalism reflected in our Constitution. We believe the system our Founding Fathers will work if given an opportunity to do so.”

Media Contact: Laura Bagby, Director of Communications  |  Office Phone: 615-261-1338  |  Email: laura.bagby@factn.org

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