I spent my whole life running around, Still let the wind kinda blow me around
…And I traded it in for a whole 'nother world, A pirate flag and an island girl –Kenny Chesney

Do you like Pirates?  I know I do.  I could watch Pirates of the Caribbean over and over again.  Many people who live on the coast have pirate bumper stickers that say Salt Life.  But Pirates have bad reputations because they pillaged innocent people, even though we don’t normally associate them in that way. Usually, we associate them with island vacations where people let go of their worries and play instead of worrying about work. Still, maybe we ought to ban pirates because they didn’t respect the rights of those they pillaged? On second thought, that might make some people very sad.  Pirate aficionados derive joy in thinking about living by their own rules and leaving behind their responsibilities. Pirates are so popular among some groups of people that there are toys, flags, clothing, and even a Talk Like A Pirate Day. Besides, just because some people find pirates offensive, the First Amendment protects free speech, so long as it isn’t inciting people to violence. 

Many people like to buy Confederate Flags and clothing with the Confederate flag logos.  Those who appreciate the flag logo most often associate this emblem with the idea of states’ rights.  The flag was first flown by the Confederacy in the Civil War, a war in which many slave holding states asserted their right to secede from the union, rather than change their economy, which relied on slave labor.  In the beginning, this “war between the states” was about preserving the union.  After fighting for two years, however, President Lincoln issued the Emancipation Proclamation which declared that all slaves in states rebelling against the Union were free, leaving slavery intact in the Border States. Freeing the slaves in the Confederate States became a Union war objective. Although the Confederate States of America wanted to maintain a way of life which included the subjugation of a group of people based on their color, today, many people would agree that not unlike the Pirate Flag, the Confederate Flag has come to symbolize states’ rights, not the subjugation of a group of people. 

Recently, in Charleston, South Carolina, Dylann Storm Roof was charged with shooting nine people at Emanuel African Methodist Episcopal Church.  Prior to the shooting, the suspect had been photographed “waving Confederate flags and wearing symbols of racist white regimes, and reportedly wrote of fomenting racial violence.” (The Washington Times) Because he was seen in this manner, many groups are demanding that the Confederate flag be removed from the public square because it is associated with white supremacy and incites people to racial violence.  This is particularly interesting because in many acts of terror, law enforcement agencies are told not to profile, i.e., associate certain clothing or associations as increasing the likelihood of violence.  If a person had committed this shooting wearing a pirate shirt, would there be screams to remove pirate paraphernalia from merchandisers and consider those displaying such emblems as inciting violence?

After the Boston Massacre, when John Adams defended the Red Coats in a Massachusetts Court of law, he explained that because we are a nation of laws and not of men, everyone is entitled to a fair trial.  He and the soldiers he defended, recognized that an unruly mob which was angry about British subjugation of the colonies might not be able to look at the specific events objectively.  They would merge their experiences and punish the soldiers, regardless of the reality.  John Adams was a brilliant lawyer and was able to save the soldiers from what at first seemed to be a certain fate.   In his summation he stated,
Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence.

We would be wise to heed the words of John Adams before the wishes, inclinations, or dictates of passions force the removal of the Confederate Flag from the public square, erasing a symbol of states’ rights at a time when the Tenth Amendment has been completely ignored by the Supreme Court in recent rulings on Obamacare.  Freedom of speech is one of the first freedoms.  There is no freedom not to be offended.  And the meaning behind symbols and of words cannot be changed just to fit a political agenda. 

When you think about it, both flags could represent subjugation or freedom.  Yo ho, yo ho, A Pirate’s life for me.

Now that the Supreme Court has redefined what marriage means, what exactly was gained by those who may now participate in same-sex marriages?  According to the Gay & Lesbian Advocates and Defenders, by participating in civil marriage rather than a civil union, same sex couples are afforded many more legal protections.  To begin, marriages are respected across the 50 United States.  As in heterosexual marriages, partners can also file for divorce.  Because of federalism, same sex partners can now benefit from joint federal /state programs and receive tax and public benefits for their families.  They will find it easier to fill out their status of married or single on official documents.  Finally, they will achieve equal, not separate but equal status in our society.

As citizens in this country, certainly same sex couples are entitled to these rights which are available only with a certificate of marriage. Wouldn’t the logical thing to do be to differentiate between a traditional marriage and a civil marriage? Civil marriages by a judge or civil servant are recognized by all 50 states and afforded the same tax and public benefits as a religious ceremony. And both require marital licenses.  Many heterosexual couples choose not to be married in a church because none are in accordance with their beliefs so this is not a new precedent. 

So the question I have to ask is, “Why did the Supreme Court feel compelled to redefine the word marriage, as understood by non-secularists, instead of simply saying civil marriages should be accessible by same sex partners across the 50 states?  Had they simply cited precedent to affirm the idea that all citizens should have access to a license permitting a civil marriage, those practicing a particular religion and abiding by a particular system of beliefs would not now be compelled to practice their religion as dictated by the U.S. government.  Clearly, by telling churches who they must marry or worshippers what they must believe, the Supreme Court has violated the separation of church and state.  The repercussions of this ruling have far reaching consequences; there will now be government interference in parenting, in non-secular institutions of learning, and in private organizations run by people in accordance with their religious beliefs. This ruling is in violation of the 1st Amendment.  Whether you are for or against same sex marriage is not at question here. The goal of marriage could have been achieved without the government elevating one set of beliefs over another.

How can this be resolved?  If the Legislative Branch of government had the stomach for it, they would begin impeachment against the Supreme Court judges who showed such contempt for the rule of law in this country.  Meanwhile, Jonathan Merritt writes in, “If the Supreme Court legalizes gay marriage in 2015, how will evangelicals respond?”

If the court were to “redefine marriage,” Moore [Russell Moore, president of the Ethics and Religious Liberty Commission of the Southern Baptist Convention] said Christians should “be ready to offer an alternative vision of marriage and family” that doesn’t include same-sex unions. Interestingly, his vision would be promoted primarily within the church rather than changing laws through political action.

As I pointed out in Majority Rules in Judicial Activism,

An easy way around this is to leave religion and marriages to the churches.  We simply must stop expecting government to legislate morality. Morality begins in the home. As the 1st Amendment is written,  

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

This first freedom is a fundamental right, one which is to be protected by our government. If the judges who committed this violation of this fundamental right are not themselves brought to justice, state legislatures need to start exercising the powers reserved to the states.  Following the example of Alabama, Alabama Senate Passes Bill to Effectively Nullify All Sides on Marriage, whose legislature introduced Senate Bill 377,

SB377 would end state issued marriage licenses, while providing marriage contracts as an alternative. It passed through the Alabama state Senate by a 22-3 margin on May 19;

The intent or motives behind this bill are a moot point. By removing the state from the equation, no one can force another to accept their marriage, nor can they force another to reject that person’s own beliefs regarding an institution older than government.

“Licenses are used as a way to stop people from doing things,” said Michael Boldin of the Tenth Amendment Center. “My personal relationship should not be subject to government permission.”

Michael Suede explains in, “Marriage Licenses Are A Racist Crime Against Humanity,”

Historically, all the states in America had laws outlawing the marriage of blacks and whites. In the mid-1800’s, certain states began allowing interracial marriages or miscegenation as long as those marrying received a license from the state. In other words they had to receive permission to do an act which without such permission would have been illegal.

With the 14th Amendment, no states should have even had the authority to outlaw such marriages, let alone license them. At the very least, such a practice would have gone the way of separate but equal during the civil rights movement.  Instead, federal government expanded this power to license, over all marriages. The government took this power in 1923.  Michael Suede continues,

In 1923, the Federal Government established the Uniform Marriage and Marriage License Act (they later established the Uniform Marriage and Divorce Act). By 1929, every state in the Union had adopted marriage license laws.

Michael Suede has a very strong opinion about this practice.

Being granted permission to marry someone by a gang of criminal thieves is the lowest form of submission to State authority a plebe could ever engage in.

He suggests his readers follow his lead and, “reject the notion that the State has the authority to sanction [my] marriage.

I am inclined to agree.


AL Update

The Supreme Court has been in the news this week for two different decisions, both of which thrust Justice John Roberts into the conservative spotlight.  In King v. Burwell, Roberts upheld the Patient Protection and Affordable Care Act, i.e. Obamacare, and in Obergefell  v. Hodges, Roberts voted against same sex marriage.  His opinions are important to examine because in both, it would appear that, he was more concerned with appeasing the popular majority instead of upholding the rule of law, which he is sworn to defend.   Let’s first look at King v Burwell.

Peter Suderman writes in, ”In Upholding Obamacare’s Subsidies, Justice Roberts Rewrites the Law—Again” about how Roberts goes beyond interpreting the law in the majority decision.

"Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them," he writes. "If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter."

And so Roberts decided that a law which explicitly and repeatedly states that subsidies are limited to exchanges "established by a State," and which defines "State" as one of the 50 states or the District of Columbia, actually allows subsidies in exchanges established by a State or the federal government. Roberts’ decision does not interpret Obamacare; it adds to it and reworks it, and in the process transforms it into something that it is not.

Or as John Podhoretz explains, even more succinctly in his article, “The twisted logic of John Roberts’ ObamaCare ruling,”

The language is plain, as even Roberts acknowledges: “An individual [is eligible] to receive tax credits only if the individual enrolls in an insurance plan through ‘an Exchange established by the State.’”

Should any state decide not to establish exchanges, that is the state’s right.  After all, this is how federalism works.  Citizens can vote with their feet, as it were.    

Suderman then paraphrases Justice Scalia’s dissent for his readers. 

If Roberts had truly wanted to defer to Congress, he could have ruled that the law means what says rather than what it does not, and effectively handed the issue back to the legislature, letting Congress decide whether and how to update the law in accordance with its own wishes. Instead, Roberts made the choice for Congress—taking its power to craft law for itself. As Scalia writes, "the Court’s insistence on making a choice that should be made by Congress both aggrandizes judicial power and encourages congressional lassitude."

Our Legislative Branch abdicated its responsibility by carelessly crafting Obamacare and passing it hastily. The Legislative Branch of government did not perform its duties in the best interest of the people by, using then House House Majority Leader Nancy Pelosi’s  words, passing the bill before knowing what’s in it. One of the reasons why the law passing process is so cumbersome is because the Framers understood how important it is to think through the repercussions of laws and not to act hastily.  By abdicating its responsibility, it left the law -not only open to judicial interpretation- but to actual revision by activist judges on a Supreme Court.

Judicial Activism by judges is not a new development.

Cato Institute’s Ilya Shapiro writes in, “Justice John Roberts’s Obamacare Decision Is an Orwellian Mess,”

Activism, typified by the four Democratic-appointed justices, finds in the Constitution no judicially administrable limits on federal power.

The law in question forces citizens to purchase health insurance or pay a tax.  The insurance in question is overpriced and citizens who qualify will receive subsidies to make it more affordable.  How does this protect the individual liberty of some people against the concentrated power of a majority? It doesn’t and the precedent has now been established that majority rules.  This is frightening because we are not a democracy; we are a constitutional-republic.  The constitution should not be transgressed because we are a rule of law, not of men. Mob rule has no respect for minority rights.  The founders intended the citizens to elect representatives who could take into account a variety of interests and prevent extremist positions.  State legislatures were supposed to choose senators to represent state’s rights. Yet most citizens in this country think the words democracy and republic are interchangeable. The Framers agreed with Aristotle who equated democracy with mob rule and considered it a perversion of constitutional government.

Just as bad as judicial activism is judicial passivism.  As Shapiro explains,

Pacifism, a knee-jerk reaction to the activism of the 1960s and ’70s, argues that unelected judges shouldn’t overturn the people’s laws. Neither approach considers that the Constitution’s structural provisions, as well as the standard canons of statutory interpretation, aren’t dry exercises in political or linguistic theory, but a means to protect individual liberty against the concentrated power of popular majorities.

In, “9 Need-to-Know Quotes From the Obergefell v. Hodges Opinions,” Justice Roberts writes in his dissent,

"Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening. ... Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept."

In this case, Justice Roberts reminds us that we are a government of laws, not of men, in other words, we are a constitutional republic.  Our constitution is supposed to defend minority and majority rights.  Again, this is a state’s rights issue, except for the fact that the 14th Amendment led to the incorporation of the 1st Amendment and federal law now trumps state law around religion. 

Steven Waldman writes in, “Founding Faith: Providence, Politics, and the Birth of Religious Freedom in America,”

Once the Fourteenth Amendment applied the Bill of Rights to the states, judges were left to figure out what the Founders would have done about things like prayer in school, when in fact such issues were far from the Founders’ minds.

An easy way around this is to leave religion and marriages to the churches.  We simply must stop expecting government to legislate morality. Morality begins in the home. As the 1st Amendment is written,

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

In this case, Justice Roberts’ opinion would seem to reflect judicial pacifism, in that he understands that the states’ laws on religion respect the codified non-secular definition of the church, which it is between a man and a woman for the purposes of procreation.

For all intents and purposes, marriage should be left to the church and the state should stay out of defining it. 

James Madison would have argued,

The “multiplicity of sects” would therefore protect religious liberty. In that sense, each faith owes its power and freedom to the vitality of other faiths. Those seeking the one True Way must tolerate the vibrancy of “false” faiths.

In essence, the Supreme Court traded one definition for another. Perhaps in this case, instead of practicing pacifism, the court should have explained that government only recognizes unions, for the purposes of wills, taxes, etc. and that marriage, as an institution, is regulated by each church as it sees fit.  What this ruling and new definition will mean for those who believe marriage is between a man and a woman remains to be seen.

In both court cases, we see the 10th Amendment being disregarded by the federal government. In both, the Supreme Court is not interpreting the law but crafting language for the law and the Legislative Branch seems to be yielding its power to the Judicial Branch. However, the people are still sovereign in this nation.  For the long term, we must elect representatives to office who understand and uphold the rule of law. To do so, we must understand it ourselves. In the short term, those we’ve already elected must consider their options for removing judges who are not exhibiting good behavior, i.e. legislating from the bench.  If they are unwilling to do their job, this must become an election issue so that the will of the majority does not disregard the will of the minority. Our freedom is at stake. 

In an article by Connor Wolf called This Is The Difference Between TPP And TPA (Hint: They Are Not The Same Thing), he explains that these two bills are linked together because Trade Promotion Authority (TPA) is a means to fast track passage of the Trans-Pacific Partnership (TPP).  I am confused by this line of reasoning because as a stand-alone bill, TPA is intended to provide transparency to all trade negotiations by soliciting public and congressional input throughout the process, however, TPP as a stand -alone bill, is behemoth and most of the information to which the public has access has been leaked.  Furthermore, it was negotiated behind closed doors.  According to the verbiage of TPA, if TPP is not negotiated using TPA guidelines, the fast track option is negated. So why do news outlets and a wide range of legislators portray these two bills disingenuously? Bundling the TPA and TPP as one idea called Obamatrade is no different than bundling immigration reform and border security, which are two separate issues.  One is about drug cartels and terrorism and the other is about how we manage people who want to immigrate to the United States. 

Challenges TPA hopes to remedy throughout the negotiating process and in resulting trade agreements have parallels to challenges facing the US and its allies when agreeing to make war on the foreign stage.  While one president may assure allies that US troops will assist in gaining and maintaining freedom, i.e., Iraq, a  new administration or congress may change the terms, leaving a foreign country abandoned, with the understanding that the US cannot be relied upon to meet its agreed upon obligations.  When negotiating foreign trade agreements, this same realization comes into play when negotiations that took place in good faith are undermined by a new administration or congress that change the terms.  TPA hopes to create a set of consistent negotiating objectives when hammering out trade agreements, allowing agreements to transcend administrations and congresses.

The following excerpts from a letter written to President Obama from Sen. Jeff Sessions  (R, AL) would alarm any person who understands the division of powers and checks and balances built into our rule of law.  Posted in Exclusive–Sessions to Obama: Why Are You Keeping Obama Trade’s New Global Governance Secret? Sessions explains,

“Under fast-track, Congress transfers its authority to the executive and agrees to give up several of its most basic powers.”

“These concessions include: the power to write legislation, the power to amend legislation, the power to fully consider legislation on the floor, the power to keep debate open until Senate cloture is invoked, and the constitutional requirement that treaties receive a two-thirds vote.”

Understanding that Senators Marco Rubio, Ted Cruz and Representative Paul Ryan have gotten behind TPA, it would be short sited and irresponsible not to probe further into why they aren’t exposing these violations of our rule of law.

According to The Hill’s Daniel Horowitz in TPA's 'Whoa, if true' moment , Cruz and Ryan have explained, “most of the content of the bill is actually requirements on the executive branch to disclose information to Congress and consult with Congress on the negotiations.”  Congress would be informed on the front end, as opposed to debating and making changes to what was already negotiated.  This is important because as Cato Institute’s  Scott Lincicome and K. William Watson explain in Don’t Drink the Obamatrade Snake Oil ,

Although trade agreements provide a mechanism for overcoming political opposition to free trade, they also create new political problems of their own, most of which stem from the inherent conflict in the U.S. Constitution between the power granted to Congress to “regulate commerce with foreign nations” (Article I, Section 8) and that granted to the president to negotiate treaties (Article II, Section 2) and otherwise act as the “face” of U.S. international relations. In short, the executive branch is authorized to negotiate trade agreements that escape much of the legislative sausage-making that goes in Washington, but, consistent with the Constitution, any such deals still require congressional approval—a process that could alter the agreement’s terms via congressional amendments intended to appease influential constituents. The possibility that, after years of negotiations, an unfettered Congress could add last-minute demands to an FTA (or eliminate its biggest benefits) discourages all but the most eager U.S. trading partners to sign on to any such deal.

TPA, also known as “fast track,” was designed to fix this problem. TPA is an arrangement between the U.S. executive and legislative branches, under which Congress agrees to hold a timely, up-or-down vote (i.e., no amendments) on future trade agreements in exchange for the president agreeing to follow certain negotiating objectives set by Congress and to consult with the legislative branch before, during, and after FTA negotiations. In essence, Congress agrees to streamline the approval process as long as the president negotiates agreements that it likes.

For a really good argument for fast tracking, watch the video that can be found here:

Here's why the TPP is such a big deal 03:24

K. William Watson explains in What’s Really in the New Trade Promotion Authority Bill? TPA will actually bring more transparency to the negotiating process.

The current bill would require the administration to provide public summaries of its negotiating positions.  This will give the public something concrete to debate without having to resort to conspiracy claims or wild theories.  It will also help everyone see more clearly how negotiators intend to implement the negotiating objectives of TPA.

It will also require that every member of Congress has access to the full text of the negotiations from beginning to end.

If TPA actually does what it is intended, a bill like TPP could not possibly be held to an up or down vote because it would not have been negotiated using the processes as outlined.  Or could it?  This administration passed Obamacare, which is a tax; they wanted comprehensive immigration reform and secure borders yet they openly courted Latin American countries to bring their kids to the border; they said they’d be the most transparent administration but there has been a dramatic lack of transparency, one must pass the bill before knowing what’s in it.

Perhaps what it all boils down to is what Rick Helfenbein writes about in Trade promotion authority, a Washington drama

There are other conservatives like Rep. Walter Jones (R-N.C.) who remain adamantly opposed to giving the president (presumed) additional authority. Jones said of Obama and TPA: "Given his record, I am astonished that some of my colleagues are so eager to fork over even more of their constitutional authority to the [p]resident for him to abuse."

While this article addresses the issue of TPA, it doesn’t begin to address the arguments against TPP, for example  The Guardian’s C Robert Gibson and Taylor Channing’s conclusion that, “Fast-tracking the TPP, meaning its passage through Congress without having its contents available for debate or amendments, was only possible after lots of corporate money exchanged hands with senators.” That is an article for another day. 

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On upcoming vote