Solomon's Specter

"Cut the living child in two, and give half to one woman and half to the other!”

Then the woman who was the real mother of the living child, and who loved him very much, cried out, “Oh no, my lord! Give her the child—please do not kill him!” But the other woman said, “All right, he will be neither yours nor mine; divide him between us!”




Then the king said, “Do not kill the child, but give him to the woman who wants him to live, for she is his mother! "






What more effective government is there than an all-wise King ? Time has proven, however, that wise Solomons are inevitably followed by foolish Rehoboams.

The Framers of the American experiment knew their history. Carefully, and with deliberate forethought, they refused to enthrone the judiciary.

There is no liberty, if the judiciary power be not separated from  the legislative and executive. Were it joined with the legislative, the  life and liberty of the subject would be exposed to arbitrary control;  for the judge would be then the legislator. Were it joined to the  executive power, the judge might behave with violence and oppression.  There would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers,  that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.

Federalist #78

This balance of power is key to preventing tyranny. The allure of the wise and powerful Solomon, however, has proven difficult to resist.

The latest effort is coming from the "equal protection" clause of the 14th Amendment. Passed in 1868, its sole purpose was to prevent freed slaves from being shackled again after the Civil War. They never meant for all people to be treated equally in all circumstances. If they knew Courts today would take their words and demand that homosexuals be granted the privilege of marriage, they would spin in their graves, haunted by Solomon's specter.

We discriminate regularly - for example, in employment, and disallowing felons the ability to vote and own guns. Have you looked closely at your tax return lately? We give tax breaks for various and sundry groups, thus denying it to others.

The 14th Amendment was never meant to enable the select few wise ones to substitute their own wisdom in place of the American people. Yet, that is what has happened. To quote Justice Harlan from Reynolds v Sims (1964):

"[the Court's] view, in short, is that every major social ill in this country can find its cure in some constitutional principle and that this court should take the lead in promoting reform when other branches of government fail to act."

If the law is to be created by the judicial branch, then where stands our republic? Is the law created by the representatives of the people, or created by five black robes? Are we a republic, or an oligarchy?

To quote Washington in his Farewell Address:

"If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed."

In the judges' attempts at playing Solomon and divining when it is correct to cut the baby in half and when it is not, they are destroying the republic.

Some will cheer when they achieve a political victory via the Court not able to be obtained via the Congress, President, and state governments. But, at some point in time, the Solomons will err too greatly in their divination and what will be finally and completely cut in half will be the republic itself.

The Reservoir of Rights

On June 8, 1789 the little man with big thoughts, James Madison, rose from his seat to address Congress.

They were reluctant to hear him (pressing financial issues) but he knew the issue had to be addressed and proceeded anyway. What was so important?

The Bill of Rights.

Madison methodically went down his list explaining each item. Toward the end noting “the great object in view is to limit and qualify the powers of Government, by excepting out of the grant of power those cases in which the Government ought not to act”  he began to conclude. Before he could finish he needed to address an issue.

The issue was a problem people had with this list of “Thou shalt not’s” directed to the federal government. The Bill of Rights was not and on a practical level could never be comprehensive. So what about rights not listed? The objectors asked. Would they fall into the hands of the federal government? Madison responded by saying,

”It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow, by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution."

 The “last clause of the fourth resolution” was this:

“The exceptions here or elsewhere in the Constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the Constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.”

This would become the Ninth Amendment which would say:

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

You see, the state representatives wanted to be clear—crystal clear. They further wanted to specify that the powers not enumerated would reside with the states. Seemingly an obvious thing  ("superfluous" said Madison) but let there be no dispute, the states said. So—they added the Ninth’s companion the Tenth Amendment.

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

This was the vast reservoir of rights explicitly left, not to the federal government, but to the people through the power of the states. The Framers thought it was impossible to make it any clearer. Now years later, we see the insidious way the sands of time can cover even the most prominent of markers. 

One hundred and seventy-six years after Madison rose to speak, in the case GRISWOLD V. CONNECTICUT the Supreme Court would quote the Ninth Amendment to remarkably do the precise opposite of what the Ninth tried to make crystal clear: The federal government cannot touch the reservoir of rights. If an unenumerated right was to be found and made into law and otherwise enlarged or restricted it would be done by the people through the states. The federal Supreme Court invalidating the state law was, not shockingly, considered a “broadening of the power of the Court”. Not to worry, said the Court.

“In determining which rights are fundamental, judges are not left at large to decide cases in light of their personal and private notions. Rather, they must look to the "traditions and [collective] conscience of our people"

Who becomes the discoverers and then subsequent arbiters of what the “traditions and collective conscience” of the people would be? Would it be the representative of the people in the states? Or even the representatives of the people at the previously forbidden federal level? Is this republicanism or is this an oligarchy? Who is creating the law here?

Five to nine people have waded into the deep waters of the reservoir and standing there along the edge like ministers of the Gospel in their black choir robes, they decide who should be baptized and who is, well, not worthy.

Has the ill effects of time slowly doomed the American experiment?

Tyranny, Tocqueville warned, need not announce itself with guns and trumpets. It may come slowly. So slowly that we will barely notice when we become one of those countries where there are no citizens but simply subjects. So quietly that a well-intentioned foreigner might say, “Maybe you should do something about your oppression.” And we would look up confused and say,

“What oppression?”

#ninth amendment

Living Sacrifice

Lord God--

I look and see the truly wonderful life you have given me





In picture frames I see my beautiful wife

Always smiling and full of life

I see their faces, look in their innocent eyes
I'm trying hard, I pray Father let them be fine.

I know they are asking me to lead them
They want me to stand for them and provide for them
My dreams call out to me, but what about them?











Oh Father this dying while living !

sometimes I  feel so alone

Abba, help me be what you have called me to be

Show me the way
Give me the strength

Jehovah Jireh, stand with me

I cannot do this alone

#Sanctus Real life inspired

Blind Spot

This summer, Justice Ginsburg, in response to a question about the recent Hobby Lobby decision accused the male members of the Supreme Court of having a "blind spot" in regards to the rights of women.

Do you believe that the five male justices truly understood the ramifications of their decision?” Couric asked Ginsburg this week. “I would have to say no,” Ginsburg replied.

This comment falls in line with the accusation of a "War on women", an insensitivity and lack of consideration toward the plight and concerns of women.

Reading this comment of hers I could not help but think back just a few years to a case called Kennedy v Louisiana (2008), a  case before the Supreme Court concerning the brutal rape of an 8 year old girl. What follows is the abbreviated detail on the case present in the majority opinion itself.

"Petitioner’s crime was one that cannot be recounted in these pages in a way sufficient to capture in full the hurt and horror inflicted on his victim or to convey the revulsion to society...When police arrived at petitioner’s home between 9:20 and 9:30 a.m., they found L. H. on her bed, wearing a T-shirt and wrapped in a bloody blanket. She was bleeding profusely from the vaginal area. Petitioner told police he [stepfather and actual perpetrator] had carried her from the yard to the bathtub and then to the bed...L. H. was transported to the Children’s Hospital. An expert in pediatric forensic medicine testified that L. H.’s injuries were the most severe he had seen from a sexual assault in his four years of practice.

The little girl had denied her step-father had committed the crime, protecting him, but the evidence was overwhelming that he had in brutal fashion raped his step-daughter. In response and pursuant to the law in Louisiana he was sentenced to death.

The Court decided that the Eighth Amendment's prohibition against "cruel and unusual punishment" prevented the man from receiving the death penalty. This, in spite of the unequivocally clear allowance for the death penalty in the Constitution in the Due Process Clauses of the Fifth and Fourteenth Amendments that state no person shall be deprived of life without due process of law and in the Fifth's Grand Jury Clause that guarantees that no person shall be held for a capital crime without a grand jury indictment. If you can be deprived of life (after due process) then capital punishment was clearly not "cruel and unusual punishment.'

The Court cast aside the plain meaning of the Constitution and instead based on "our own independent judgment" and the "evolving standards of decency (!) that mark the progress of a maturing society" overruled the Louisiana law. This Supreme Court ruling explicitly allowed for the death penalty to remain in place for crimes against the state (like espionage or treason) but not for a brutal rape of an underage girl. So if an Edward Snowden were apprehended he could receive the death penalty but not the perpetrator of this type of crime.

What caused me to think of this case was that of the five Supreme Court members making this decision in 2008 was a single woman--Ruth Bader Ginsburg. The same woman who six years later in 2014 would opine that the male members of the Court were insensitive to the plight of women in not mandating that an employer violate their religious beliefs and pay for a select few drugs they considered abortifacients.

                                                 Who here has the blind spot?

The Sirens will sing

                                                                  

                                                                  

                                           Yes, it's empty in the valley of your heart

The sun, it rises slowly, but you will walk
The fears, the failures, will no longer take part

I have seen the same
I know the shame in your defeat

The sirens will sing but I will tighten the rope and we will hold onto hope

Bind me tight-- I'll find strength in pain

I will change my ways
I'll know my name as it's called again

You will have other things to fill your time

You will take what is yours and I'll take mine
Know the truth and refresh your broken mind

The sirens will sing but I will tighten the rope and we will hold onto hope

Oh! Block my ears!  I can see the widow and orphans through my tears!

The pain and anguish I can no longer stand!

Let me die with mine own hand!

Find strength in pain

God will change your ways
You’ll know your name as it's called again

The sirens will sing but I will tighten the rope and we will hold onto hope


Homer's Odyssey, Mumford & Sons-"The Cave", and my own experiences.

Hello my name is...

Regret

I’m pretty sure we have met
I’m the whisper inside
That won’t let you forget

Every single day of your life

Defeat

I know you recognize me
Just when you think you can win I’ll drag you right back down again
‘Til you’ve lost all belief

These are the voices, these are the lies
And I have believed them, for the very last time…

Child of the one true King

I’ve been saved, I’ve been changed, and I have been set free
I am no longer defined
By all the wreckage behind

The one who makes all things new
Has proven it’s true





I am a child of the one true King

Adapted from Matthew West

Heels on the Cliff

With the Burwell v Hobby Lobby case being decided this past week, I was thinking of the concept of rights and their limits.

"No right is absolute."

This is a common legal statement mentioned frequently in opinions. A well known application is:

"The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic."-Oliver Wendell Holmes in the 1919 Schenck v United States decision.

This means that the Courts must "construe" or interpret the rights found in the Bill of Rights -- they must decide the limits.

Recognizing the importance of religious freedom the Court had in the past applied its highest level of protection, strict scrutiny to it. This means the government cannot violate a sincere religious conviction unless it can show it has a compelling interest in doing so, the law is tailored as narrowly as possible to achieve its goal, and the law must be the least restrictive way of doing it.

In 1990, in the case Employment Division v Smith the Court surprisingly discarded this high standard. Justice Sandra Day O'Connor in her opinion disagreed sharply with this saying,

"The compelling interest test effectuates the First Amendment's command that religious liberty is an independent liberty, that it occupies a preferred position, and that the Court will not permit encroachments upon this liberty, whether direct or indirect, unless required by clear and compelling governmental interests 'of the highest order,'...Only an especially important governmental interest pursued by narrowly tailored means can justify exacting a sacrifice of First Amendment freedoms."

In response, a law was overwhelmingly passed, the Religious Freedom Restoration Act (RFRA), that explicitly restored the highest legal standard. That was 21 years ago and the political winds have shifted. In what legally should have been a relatively easy case to decide based on RFRA, there remarkably were four justices, one shy of a majority, who were willing to construe this "preferred independent" freedom to the point of disappearing. What was so important to have them do so? 

A competing Constitutional right, perhaps? Where in the Constitution is the right that employers must pay for contraception? for abortifacients?

They are willing to take a non-Constitutional statutory "right" and give IT absolute protection, something even Constitutional rights do not enjoy. If there are 20 different products the FDA approved then by God or without your God you must pay for all.

As I type away just a day after July the 4th, I remember those immortal words,

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights..."

I am sobered when I consider that though this basic unalienable right thankfully still stands it does so with its heels on the cliff.

Is this First Freedom really this close to falling away?







#hobbylobby #religiousfreedom