Decent Respect To The Opinion Of Mankind: Declaring The Why Of Independence

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

Thomas Jefferson, The Declaration Of Independence

Every Fourth of July, Americans celebrate one of the world's most remarkable documents. On that day, in 1776, the Second Continental Congress issued a declaration of their intent to be free from British rule, and by so doing made real a radical proposition that hitherto had only been a quaint abstract concept: that political authority, and the right to govern, descended from the people of a nation.

We are rightly awed by the majesty of Thomas Jefferson's rhetoric. We are properly impressed by the hope and humanity of the ideals he set forth. From that first Fourth of July until now, America has struggled imperfectly to measure up to the premise of universal human equality at the heart of the Declaration of Independence.

Yet the Declaration of Independence is more than its ideals. It is more than a mere assertion of inalienable rights. It is also an homage to humanity.

These Are Not Democrats. These Are Fascists

Be afraid. Be very afraid.

In the third Democratic debate, candidate and former Congressman Robert Francis O' Rourke let the cat out of the bag on gun control: The Democrats intend to confiscate America's guns. This policy mandate comes even as Americans' enthusiasm for gun control is trending down--probably due to government abuses such as the recent demand of Apple for the names of all the people who've downloaded a gun-sighting app.

Yet this is not the most remarkable policy position that has been embraced by the Democratic 202 Presidential hopefuls. As former Vice-President Joe Biden has demonstrated, the basis for Democrats' domestic policy proposals (to the extent they have any) will be race; to a man, the Democratic Party is now the party of racism. They are also proposing to be a party that will think nothing of deciding how stock markets should behave.

At CNN's hours-long climate change "town hall", Senator Kamala Harris declared her willingness to rewrite the Senate's procedures by eliminating the filibuster:

Kamala Harris says if Congress does not pass the $93 trillion Green New Deal that she will take over the Senate as President and eliminate the filibuster to ram the agenda through

The Green New Deal's creator said it was created to implement socialism, not help the environment pic.twitter.com/k0tONTOUok

— Ryan Saavedra (@RealSaavedra) September 4, 2019

This notion has been echoed by Senator Elizabeth Warren:

I want to be as clear as I can: When Democrats next have power, we should be bold. It’s time to get rid of the filibuster. #DemDebate

— Elizabeth Warren (@ewarren) September 13, 2019

Beyond the Presidential candidates, Congress itself has undertaken to not only criticize Supreme Court rulings, but has expressed a desire to arrogate unto itself full legal authority to regulate voting:

Nadler Attacks SCOTUS, State's Rights, and Vote Integrity: 

Voter ID laws, cleaning up voter rolls, and prohibiting felons from voting are "discriminatory" (racist). 

Goal: Federal legislation to override State and Local Voter Integrity Laws. pic.twitter.com/UWbcfzHual

— TrumpSoldier (@DaveNYviii) September 10, 2019

The "boldness" the Democrats seek is more government intervention in the daily lives of Americans, more laws, more regulation, more centralized control over just about everything. They have said this, time and again, in different forums, different contexts, and with regards to different issues.

In response to all their seeming "boldness" and apparent legislative enthusiasm, however, comes the crucial question: Where in the Constitution is either the Congress or the President given authority to act along these lines?

Without a doubt, this question should be at the center of every political debate in this country. As I have observed previously, if we desire good law, we must begin with the Constitution. If we wish to enact good laws, we must take care not to enact laws which contradict the Constitution and violate even one of its strictures. If we hope to design good law, we must ask ourselves the right questions about the law, and the Constitution. 

Is there authority in the Constitution for any of what the Democrats propose to do? With respect to gun control and gun confiscations, the answer is most assuredly "No!". The Second Amendment is quite categorical in its construction, and thus in its meaning:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

For Congress to have authority to regulate or confiscate firearms, the Constitution must have some other overriding clause. Alas for the Democrats, there is no such clause. The closest one gets to such authority is the Commerce Clause from Article 1, Section 8, but even the Supreme Court has acknowledged that the Commerce Clause is itself not without limits (United States v Lopez, 514 US 549 (1995)), one of those limits being restraint found elsewhere within the Constitution, such as the Second Amendment, a point further advanced in District of Columbia v. Heller (554 U.S. 570 (2008)).

Is there authority within the Constitution for the President of the United States to end the Senate filibuster? No, there is not. Each House of Congress sets up its own rules without outside input, and is explicitly empowered by Article 1 Section 5 to do so. The President cannot command the Senate to change its rules, and the filibuster is a Senate rule.

Does Congress have authority to regulate State and local elections? A plain reading of the Constitution does not permit this question to be answered in the affirmative. The main body of the Constitution itself is silent on whom may regulate elections, but the Tenth Amendment is quite clear that rights and powers not articulated within the Constitution belong to the states or to the People.

Note that these are not questions of propriety or even of efficacy, but of authority. One need not question whether the confiscation of a particular category of firearm would have an impact on violent crime, or if the elimination of the Senate filibuster would enable the passage of better legislation to acknowledge the reality that the President lacks the authority to do what the Democratic candidates are promising. One need not debate voter integrity laws to realize that Congress is not the body authorized to address elections, but the legislatures of the several states. In each example described above, the Constitution prohibits the Congress and the President from carrying out the legislative and executive order agendas promised by the Democrats.

Yet the Democrats as a party are unaware of this. They are oblivious to the patent unconstitutionality--which is to say, illegality--of what they promise. They are completely nonplussed that the very act of promoting these unconstitutional proposals flies in the face of the oath every Congressman and every Senator takes upon assuming their elected office, an oath that is mandated by law:

I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.

How can any politician or political party pride itself on the wholesale disregard of sworn duty? How can any politician seeking or holding high office in the United States fail to acknowledge the supremacy of the Constitution?

The only answer that presents itself is that said politician, said political party, cares nothing for the Constitution. The Democrats, as they have done since the days of Woodrow Wilson, view the Constitution not as a guiding light but as an inconvenience, a nuisance that is best ignored whenever possible. We know this because their promises and their deliberations flagrantly and even pridefully ignore the constraints upon government clearly laid out by a plain reading of the Constitution.

The Democrats are campaigning on a platform of dictatorship, of Constitutional abrogation, of the removal of fundamental rights and basic civil liberties. The Democrats are campaigning to end the rule of law in this country, and replace it with the rule of lawyers, of civil servants, of petty bureaucrats, unelected and unaccountable. They have said this directly and repeatedly. They have said this proudly.

The Democrats are not democrats. They are not adherents of democracy They care nothing for the fact that ours is a government by the people. They are dismissive of the Constitution's Preamble, beginning as it does with the emphatic declaration of popular sovereignty, "We The People...."

The Democrats are literal fascists. One need only look at the definition of fascism to see this to be true:

a political philosophy, movement, or regime (such as that of the Fascisti) that exalts nation and often race above the individual and that stands for a centralized autocratic government headed by a dictatorial leader, severe economic and social regimentation, and forcible suppression of opposition

Substitute "state" or "government" for "nation" in that definition and one gets the perfect summation of every Democratic talking point uttered in the past several years. This is not an exaggeration.

The United States is and has always been a representative democracy. As Alexander Hamilton said so famously, "here, sir, the people govern". "We The People" are the ones who are the final authority in this country. Not Congress, not government, and certainly not the Democratic Party.

Today's Democratic Party is campaigning on an agenda of stripping that all away. They are doing so openly. They are doing so proudly. And their supporters are cheering them on.

Be afraid, America. Be very afraid.

All Men Are Created Equal: The Revolution That Mattered

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, that among these are Life, Liberty and the pursuit of Happiness.

It has long been my contention that this sentence from the Declaration Of Independence is among the most radical, the most powerful, and the most consequential in the entirety of the English language.  With this one sentence, Thomas Jefferson swept away all traditional understandings of human worth and human dignity, setting in their stead a radical new standard of human value. Jefferson was not the first to argue human equality--John Locke was the source for much of his philosophical logic and even a fair bit of his rhetoric, having posited human equality within the state of nature in his Second Treatise on Government. Yet Jefferson was the first man to put these words to paper in a consequential context. This was no mere philosophical exploration, but a declaration of political action--an action that could have severe repercussions for all who signed it.

We should recall the history preceding the Declaration of Independence.  The previous year, on July 5, 1775, the Continental Congress approved the Olive Branch Petition, in an effort to peaceably resolve the disputes the colonists had with the Parliament in Westminster. This missive, addressed to King George III, hoped to obtain his intercession with Parliament and curtail what the Continental Congress described as "the delusive pretences, fruitless terrors, and unavailing severities" of the various ministers tasked with administering colonial relations on behalf of Parliament and the Crown. The petition began with a clear homily to the colonists' status as British subjects, and their desire to remain so:

The union between our Mother Country and these colonies, and the energy of mild and just government, produced benefits so remarkably important, and afforded such an assurance of their permanency and increase, that the wonder and envy of other Nations were excited, while they beheld Great Britain riseing to a power the most extraordinary the world had ever known.

Two days after the Olive Branch Petition was presented to King George, he issued the now-infamous Rebellion Proclamation, not only rejecting the Petition, but declaring its very existence to be a treason against the Crown, and charging the whole of the British Empire to bring the traitors to justice:

...that not only all our Officers, civil and military, are obliged to exert their utmost endeavors to suppress such rebellion, and to bring the traitors to justice, but that all our subjects of this Realm, and the dominions thereunto belonging, are bound by law to be aiding and assisting in the suppression of such rebellion, and to disclose and make known all traitorous conspiracies and attempts against us, our crown and dignity.

This is the backdrop against which Thomas Jefferson wrote the Declaration of Independence. The members of the Continental Congress, along with the nascent Continental Army then besieging the city of Boston, were already declared traitors. Continuing a quest either for independence or a fair redress of colonial grievance would be considered proof of treason--a crime punishable by death. The Declaration of Independence was his response to the Rebellion Proclamation.

It was a powerful response.  In simple and direct language, Thomas Jefferson laid out the colonial case for seeking independence. Yet Jefferson went farther than just rejecting the assertions of the Rebellion Proclamation. His solution to the problem of King George branding the colonial activists of the time traitors was to simply deny King George's authority to even propose such a thing. Where the Rebellion Proclamation was grounded in the premise that British subjects had an intrinsic duty of allegiance to the Crown and obedience to its edicts, Jefferson discarded that relationship altogether, arguing instead the Lockean principle of human equality within the state of nature, and declaring that human rights were an endowment from God, not from the King nor from Parliament. 

This is a remarkable political statement for the time, for the British Bill Of Rights,  passed by Parliament in 1689 in the aftermath of the "Glorious Revolution" that replaced James II with his daughter Mary and her husband William of Orange, phrased the source of such rights as the Parliament--a British subject's rights were determined by Parliament, not by God:

And thereupon the said Lords Spiritual and Temporal and Commons, pursuant to their respective letters and elections, being now assembled in a full and free representative of this nation, taking into their most serious consideration the best means for attaining the ends aforesaid, do in the first place (as their ancestors in like case have usually done) for the vindicating and asserting their ancient rights and liberties declare

Jefferson not only rejected this human derivation of human rights, he subordinated the entire edifice of government to their protection:

— That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Thus Thomas Jefferson expanded the list of unalienable rights to include the right to alter or abolish government that a people found to be hostile to the defense of Mankind's unalienable rights. Where King George proclaimed the activities of the Continental Congress a rebellion, Thomas Jefferson doubled down by proclaiming an unalienable right of the thirteen colonies to rebel. Simply and directly, Jefferson nullified not just King George's Rebellion Proclamation, but the very right of any King (or any Parliament) to even make such a proclamation. If people deem their government hostile to their fundamental liberty, rebellion is their right, and no power on earth may deny them that right.

The "American Revolution" was not a revolution of arms, nor of military muscle. It was and it remains a revolution of ideas. Thomas Jefferson's idea, of the equality and unalienable sovereignty of Man, gave the separatist ambitions of the Continental Congress a moral force and a moral relevance never before seen in history. From this single document flows a singular experiment in human governance, one that has not been attempted nor replicated since--a government subordinate to the will of the people. That sentiment was restated at the Constitutional Convention in 1787, with the equally eloquent Preamble to the United States Constitution:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Americans have debated and discussed the meanings and imports of Jefferson's words. At Gettysburg, Abraham Lincoln, wedded this ideal of citizen sovereignty to the struggle of the Civil War, beseeching the American people to continue that struggle so that "... government of the people, by the people, for the people, shall not perish from the earth." In 1963, Dr. Martin Luther King, Jr., stood on the steps of the Lincoln Memorial and challenged America to measure up to Jefferson's words in his immortal "I Have A Dream" speech. Civil rights activists of every kind have invoked Jeffersonian themes of equality and fundamental human sovereignty in their various pursuits of societal justice and societal change.

What Americans have not done, what humanity as a whole has not done, is challenge Jefferson's words. While texts such as the United Nations Universal Declaration of Human Rights seek to outdo Jefferson's comparatively compact argument, that Declaration's preamble begins with a pale paraphrasing of Jefferson:

Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Unparalleled and unchallenged, the Declaration of Independence stands alone as the pre-eminent declaration of human right, human sovereignty, and human dignity. Its words were a challenge to the world in 1776, and they remain a challenge to the world today. Wherever people struggle either to define or achieve equality, or to right injustices and redress grievances, they are proving the enduring truth within its text. Wherever people seek freedom, they are continuing the revolution Thomas Jefferson started.

Thus the premise that all men are created equal was not merely a revolutionary thought for 1776. With its enduring strength and undeniable truth, it is the revolution that has informed all revolutions since. The premise that all men are created equal is the one revolution in human history that matters to us all.

He Is Risen

He is not here; He has risen, just as He said. 

Matthew 28:6

After the Sabbath, at dawn on the first day of the week, Mary Magdalene and the other Mary went to look at the tomb. There was a violent earthquake, for an angel of the Lord came down from heaven and, going to the tomb, rolled back the stone and sat on it. His appearance was like lightning, and his clothes were white as snow. The guards were so afraid of him that they shook and became like dead men.

The angel said to the women, “Do not be afraid, for I know that you are looking for Jesus, who was crucified. He is not here; he has risen, just as he said. Come and see the place where he lay. Then go quickly and tell his disciples: ‘He has risen from the dead and is going ahead of you into Galilee. There you will see him.’ Now I have told you.”

So the women hurried away from the tomb, afraid yet filled with joy, and ran to tell his disciples. Suddenly Jesus met them. “Greetings,” he said. They came to him, clasped his feet and worshiped him. Then Jesus said to them, “Do not be afraid. Go and tell my brothers to go to Galilee; there they will see me.”

Matthew 28:1-10

Thus Matthew recounts the miracle that is the essence of Christian belief, and the font of all Christian tradition: that Jesus, having suffered under Pontius Pilate, was crucified, died and was buried, descended into Hell, yet rose again from the dead.

Whether the Resurrection of Jesus Christ is miracle or myth is, ultimately, irrelevant. Miracle or myth, the relevance of the Resurrection in daily living is as metaphor: Jesus overcame even physical death, transcending into Divine Being. 

The Good News that is the Gospel is simply this: through faith--in Jesus and in God--all men may similarly transcend into divinity. Indeed, the Christian community is called to such transcendence,  as Paul points out in Romans:

Therefore, I urge you, brothers and sisters, in view of God’s mercy, to offer your bodies as a living sacrifice, holy and pleasing to God—this is your true and proper worship. Do not conform to the pattern of this world, but be transformed by the renewing of your mind. Then you will be able to test and approve what God’s will is—His good, pleasing and perfect will.

The Resurrection offers meaning and hope. Through the Resurrection, Christ redeems all of Mankind. And if the Resurrection is the foundation of Christianity, redemption is surely its most essential teaching. 

Redemption is Christianity's greatest contribution to Western thought and Western civilization. Redemption shifts the meaning of law--both the laws of men and the Laws of God. Redemption displaces the highly conditional and consequential ramifications of Mosaic Law (and the many other ancient legal traditions of which the Mosaic Law is but a part), replacing atonement as the key to righteousness, and thus the essence of justice. Redemption, the particular gift of Jesus Christ, is thus relevant to even the most avowed non-Christian.

Consider the words themselves. "Atonement" is "reparation for an offense or injury". "Redemption" is an act "serving to offset or compensate for a defect." Atonement is something we ourselves must do; redemption is something that is done for us, and offered to us.

This is no small change to the meaning of law. When Christ healed the paralytic, proclaiming the man's sins were forgiven, the scribes and priestly authorities accused Him of blasphemy. The notion of redemption was as radical--and as threatening to the established social order--then as it is today, the era of political correctness and "#MeToo" pogroms against the slightest of sexual faux pas. When redemption displaces atonement as the measure of justice, those who enforce the law are themselves displaced, for what need is there of priestly intercession or priestly justification when the demand for atonement, the insistence upon acts of contrition, is mooted?

In teaching redemption vs atonement, Jesus articulates an inescapable and universal truth: regardless of who we are, where we are, what we have done or not done, we are all human. We are all part of the same Mankind whom Jesus came into the world to save. This is not a truth that is confined to the Bible, nor to the teachings of Jesus, and there are innumerable secular sources that echo this same truth--one of my personal favorites comes from John F. Kennedy's American University commencement address in 1963: "...our most basic common link is that we all inhabit this small planet. We all breathe the same air. We all cherish our children’s future. And we are all mortal."

Thomas Jefferson positioned this truth at the center of the Declaration of Independence, brilliantly transforming a simple proclamation of the American colonies' intention to rid themselves of British rule into a profoundly eloquent proclamation of humanity, and the universal bequest of civil rights and civil liberties that is given to all men in all places at all times. This is a theme President Kennedy would reiterate in his 1960 inaugural address: "...the rights of man come not from the generosity of the state but from the hand of God."

Redemption is thus the essential prerequisite to liberty. As redemption is the fundamental proclamation of our humanity, it is also the foundation of our freedom. Redemption establishes that the ultimate authority--the sole arbiter of right and wrong--is not a judge, nor a king, nor any head of a State, but only God Himself. Redemption renders us all equal, and thus through redemption we derive the Jeffersonian precept that all government derives its just powers from the consent of the governed--for when we are all equal before God, and when we are all redeemed by God, on what authority may any one man impose upon his fellows?

The theme of redemption is subtly woven throughout the text of the United States Constitution. We see it in the unconditional pardon power granted to the President in Article 2 Section 2. We see it in the prohibition in Article 1 Section 9 against Bills of Attainder. We see it in the prohibition against "corruption of blood" in Article 3 Section 3. We see it in the rights expressed in the 5th, 6th, 7th, and 8th Amendments. The wording of each of these passages is noteworthy for being unconditional. These rights are not held to the whimsy of a government, nor of any court nor judge. These rights belong to all people, in all times, at all places. Being unconditional, they are neither earned nor can they be rescinded.

Without the hope of redemption, how could any people even contemplate the "more perfect Union" mentioned within the Constitution's Preamble?

Redemption is the eye to the future. Atonement is ever focused on the past. Redemption is what makes possible the societal transformations sought (and, in large measure, achieved) by Dr. Martin Luther King, Jr., as laid out in his historic "I Have A Dream" speech:

And so even though we face the difficulties of today and tomorrow, I still have a dream. It is a dream deeply rooted in the American dream.  

I have a dream that one day this nation will rise up and live out the true meaning of its creed: "We hold these truths to be self-evident, that all men are created equal." 

I have a dream that one day on the red hills of Georgia, the sons of former slaves and the sons of former slave owners will be able to sit down together at the table of brotherhood. 

I have a dream that one day even the state of Mississippi, a state sweltering with the heat of injustice, sweltering with the heat of oppression, will be transformed into an oasis of freedom and justice. 

I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character. 

I have a dream today! 

I have a dream that one day, down in Alabama, with its vicious racists, with its governor having his lips dripping with the words of "interposition" and "nullification" -- one day right there in Alabama little black boys and black girls will be able to join hands with little white boys and white girls as sisters and brothers. 

I have a dream today! 

I have a dream that one day every valley shall be exalted, and every hill and mountain shall be made low, the rough places will be made plain, and the crooked places will be made straight; "and the glory of the Lord shall be revealed and all flesh shall see it together."

The Good News of this Easter Sunday, of every Easter Sunday, is not merely that Jesus has risen from the dead, but that, by His rising, we all may hope to rise--rise above our failings, rise above our faults, rise above the petty differences that separate us from each other. The Good News of Easter is that it is within every man to rise up and be free--and we are all called to freedom, even as Paul reminded the Galatians:

You, my brothers and sisters, were called to be free. But do not use your freedom to indulge the flesh; rather, serve one another humbly in love. For the entire law is fulfilled in keeping this one command: “Love your neighbor as yourself.”

My prayer this day is that all may rejoice in the day, for He is Risen and we are made free. 

The Declaration of Independence -- As Relevant Today As In 1776

On July 4, 1776, the Continental Congress voted to declare America's independence from Great Britain. Throwing caution to the wind, they pledged their lives, their fortunes, their sacred honor to securing freedom for a fledgling United States of America.

Yet the Founding Fathers did something far more profound that merely tear thirteen colonies away from Great Britain. In putting their names to the Declaration of Independence, they ushered in one mankind's few successful political revolutions. In one single paragraph, Thomas Jefferson brought together all the reason, all the power, all the passion of the Enlightenment to reorder the foundations of governments everywhere:

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, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

Coming barely a century after England's chaotic and bloody Civil War, in an age when nearly all monarchs held virtually limitless power over their subjects, Jefferson's words were not merely radical. In a very real sense, the Declaration of Independence was and is the American Revolution. The Declaration of Independence declared not just the creation of a new nation, the United States of America, but declared for all time that, as President John F. Kennedy would later observe in his 1960 inaugural address, "...the rights of man come not from the generosity of the state but from the hand of God."

The inalienable rights of man the Continental Congress declared in 1776 were under assault in 1776, they were under assault in 1960, and they are under assault today. In the wake of Great Britain's seismic "Brexit" vote, the European Union seeks to punish the British people for invoking their right to abolish a government deemed hostile to protecting man's inalienable rights--namely, their membership in that political union. In the Middle East, the Islamic State has proclaimed a new Caliphate, and seeks dominion over all Muslims worldwide, as well as the extermination of all non-Muslims. Totalitarian ideologies--fascism in all its myriad malevolent forms--have never ceased inspiring the power-hungry and the power-mad to seek dominion over various parts and peoples of the world.

The Declaration of Independence remains the proper response to all who would dominate and enslave their fellow men. The Declaration of Independence reminds us that when government anywhere is hostile to individual liberty, people everywhere are released from any allegiance to that government. The Declaration reiterates that the duty of free men is not just to resist tyranny, but to erase it, to drive tyrants wherever they may be into oblivion.

So long as tyranny exists in the world, the Declaration of Independence will remain relevant, not just to Americans, but to all people, in all places, at all times.

Is Kim Davis A Latter-day Rosa Parks? I Hope So.

One would have to be living on a desert island not to have some awareness of the legal fracas surrounding Rowan County Clerk Kim Davis, who chose to go to jail on a contempt of court charge rather than comply with the United States Supreme Court edict set forth in Obergefell v. Hodges (576 US ___(2015))  legalizing same sex marriages. For Ms. Davis, putting her name to a marriage license for two persons of the same sex was something her religious beliefs would not allow her to do in good conscience.  The courts ordered her to do so anyway, and she refused. And she was jailed on a contempt of court citation in response.

Those supporting her stance erupted in outrage. United States Senator and Republican Presidential Candidate Ted Cruz spoke out passionately on her behalf, declaring that it was unconscionable for the government to arrest a woman simply for "living according to her faith." Another GOP candidate, former Arkansas Governor Mike Huckabee, also took up her cause and worked to have her released, succeeding after she spent five days in jail.

Unsurprisingly, many of Ms. Davis' supporters compared her to civil rights icon Rosa Parks, whose refusal to give up her bus seat to a white man sparked the Montogomery Bus Boycott that heralded the onset of the Civil Rights Movement of the 1950s and 1960s. Equally unsurprisingly, many on the political left scoffed at such comparison.

Is Kim Davis a latter day Rosa Parks?

It is no slight to Rosa Parks to note that she stands chiefly as a symbol around which the Montgomery Bus Boycott could coalesce, In fact, a case could be made that the significance of her action stems from the sheer unpretentiousness with which she acted--her response to a threat from the bus driver to call the police was simply "You may do that". She was not seeking a confrontation, merely a bus ride. Nor was she at the vanguard of the Civil Rights Movement thereafter. Others, such as Dr. Martin Luther King, Jr., took her simple act of civil disobedience and launched a movement around it. Both in Montgomery, Alabama, and later in Detroit, Michigan, she was a quiet, even shy, unassuming woman, who chose to live quietly and largely away from the spotlight. As a result, Rosa Parks is remembered for the symbolism of that one act more than anything else.

By comparison, Kim Davis has been far more active, speaking at rallies opposing the Obergefell decision even prior to her incarceration--as well as having run for the elective office of County Clerk. 

However, in one key regard, there is a comparison to be made: Both Rosa Parks and Kim Davis engaged in an act of civil disobedience that other groups chose to leverage through lawsuits to correct a perceived in justice. Like Rosa Parks, Kim Davis is a symbol--of the First Amendment right to free religious expression to some, or a symbol of hatred, homophobia, and divisiveness to those who view same sex marriage as a fundamental right.

Thus we pose the question, is Kim Davis a latter day Rosa Parks?

Hopefully, she is--at least in this regard: my hope is for Kim Davis to become a symbol around which a movement can coalesce to reinvigorate a true Constitutional approach to jurisprudence, and a renewed respect for individual rights, both civil and fundamental, that the Constitution does protect quite forcefully.

In all of the controversy surrounding Kim Davis, one truth is made abundantly clear: Obergefell v Hodges is a horrendous ruling. It is horrendous not because same sex couples should not marry, or because homosexuals should not have certain rights available to heterosexuals, but because it is a disjointed and even contradictory ruling, with at best a specious link to the Fourteenth Amendment that serves as its Constitutional justification. Regardless of one's particular view on same sex marriage, the simple truth is that Obergefell is bad law.

At the beginning of his opinion, Justice Anthony Kennedy opines that "marriage was once viewed as an arrangement by the couple's parents based on political, religious, and financial concerns; but by the time of the Nation's founding it was understood to be a voluntary contract between a man and a woman." Further into his reasoning, he reverses himself, noting that "the nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality." Marriage is either a simple voluntary contract, as he first expresses, or it is a bond with deep religious (i.e., "spiritual") overtones; the two articulations are mutually exclusive.

Moreover, if marriage is a bond with religious overtones--and all three Abrahamic religious faiths: Judaism, Christianity, and Islam accord religious significance to marriage--then it is ludicrous for a Supreme Court to rule without contemplating how the First Amendment proscriptions against laws respecting the establishment of a religion would apply. Justice Kennedy mentions the First Amendment exactly once, at the end of his reasoning, and then largely as an aside.

But what if marriage is not a bond with religious overtones?

Obergefell is still bad law, first and foremost for injecting religious overtones via Justice Kennedy's reasoning where none should apply, Moreover, the First Amendment also guarantees people a right to peaceably assemble--more broadly termed the right of free association. People may join together in such fashion as they wish, without interference from government, so long as they keep the peace.

With or without consideration of religion, "marriage" is and must be a First Amendment issue, not a Fourteenth Amendment one.

A key limitation to the language of the Fourteenth Amendment must be noted: it guarantees merely the equal application and equal protection of the law. The Fourteenth Amendment in and of itself cannot establish new rights. The Amendment which guarantees rights not otherwise enumerated within the Constitution is the Ninth Amendment, which Justice Kennedy ignores completely. If one therefore seeks to address the Constitutionality of marriage laws and eschews the First Amendment, the Ninth Amendment is still the vehicle by which a right not articulated within the Constitution can be defended. If there is no right of marriage protected by the First Amendment, or definable under the Ninth Amendment, there can be no right upon which the Fourteenth Amendment can operate.

Predicating an assertion of right on the Fourteenth Amendment without invoking one or more other Amendments or passages of the Constitution is irrational on its face.

Finally, Obergefell is contradictory in this regard as well: while it asserts marriage to be a fundamental right, it then endorses the existence of an entire corpus of laws curtailing that right, despite providing not a whit of substance to a supposition that such laws are themselves narrowly tailored and in furtherance of a valid compelling purpose.

What compelling purposes might the state have in regulating marriage? Justice Kennedy lists a set of benefits he attributes to marriage: "...taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; medical decision-making authority; adoption rights; the rights and benefits of survivors; birth and death certificates; professional ethics rules; campaign finance restrictions; workers' compensation benefits; health insurance; and child custody, support, and visitation rules...." Intriguingly, however, none of these rights involve the issuance of a marriage license--the particular sticking point that landed Kim Davis in jail--but merely an acknowledgment by the state that a couple are married. It is worth noting these benefits are available even in the states that recognize a "common law" marriage for which there is no formal license issued. Based on his own listing of state-granted benefits to married couples, the state has an interest at most in recognizing a marriage, but that is hardly a justification of a need to regulate marriage. 

It should be immediately obvious that when a state has the power to issue a license, it has a corresponding capacity to at any time revoke that license. Obergefell reasserts and reaffirms the power of the state in exactly that fashion--and that is something I cannot envision sitting well with sames sex marriage advocates should the mood of the court turn against them in the future.

Obergefell v Hodges is bad law. That is the inescapable conclusion. It is bad law because it is bad reasoning. Because it is bad law it relegates either same sex couples or religious adherents to a discriminated class--and the Constitutional standard is no discrimination, period. Whatever defects one may argue existed in marriage law before Obergefell, such a schizophrenic ruling can hardly provide substantial and sustainable remedy. Had Justice Kennedy started with the Constitution, a moral, just, and defensible decision was very much within his grasp--for he himself delivered all the necessary particulars to rule against the issuance of all marriage licenses altogether; such a ruling would have eliminated in its entirety the question of same-sex marriage.

Obergefell v Hodges is bad law. By failing to read the Constitution much at all, let alone properly, Justice Kennedy supplanted his own personal predilections for the rule of law that is the Constitution. By failing to reach a Constitutionally rigorous and sound decision, Justice Kennedy elevated the rule of the Court over that of the Constitution. By doubling down on the power of states to issue and regulate marriage licenses, Justice Kennedy elevated the power of the State above the rights of the people, ironically even as he wrote an opinion purportedly celebrating those selfsame rights. 

Rosa Parks was a face and a symbol for the Montgomery Bus Boycott. She humanized issues mired in the mechanics of law and business policy. She became the focal point for people's anger at the injustices of a society that was drawn up to be "Separate but Equal.". By being that symbol, by consenting to be that human face, she gave immediacy and impetus to the Civil Rights Movement.

Such a symbol is needed once more. We need a face to humanize the dangers and challenges of judicial overreach, of judicial whimsy, of judicial tyranny. We need a focal point to stand against such injustice.  Obergefell needs to be overturned, not because same sex marriages are themselves wrong, but because the rationale Justice Kennedy used to legalize them is wrong, because it rests entirely on the whimsy of the judiciary and takes no substantive notice of the text or meaning of the Constitution, nor of the essence of what "fundamental rights" means. Obergefell needs to be overturned because it empowers the state at the expense of the people.

In defending her religious convictions Kim Davis defended the most fundamental right of all: liberty. Surely that is a right all Americans can agree needs defending to the utmost.