Why It’s Crucial to Repeal the 17th Amendment

by Diane Rufino, August 4, 2022

When I talk to folks about the Constitution, I usually comment that “the Constitution holds all the answers to the problems that are plaguing us as a country,” and as a republic. This article will explain why the original Constitution, which was written in Philadelphia in 1787 and ratified by the States in 1788, and which essentially remained in effect without change until the turn of the 21st century, with its provision on how US senators were to be selected, is one of those solutions.

The original Constitution provides a unique process for selecting US senators; that process was provided in Article I, Section 3, which read: “The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.” In short, our Founding Fathers incorporated the plan proposed by Roger Sherman, a delegate from Connecticut who advocated for the small states, articulated a national legislature with two parts. He envisioned a bicameral legislative branch, which gave equal representation to each state in the Senate, and representation based on population in the House of Representatives. The US House is the “people’s body” and the US Senate would be the “States’ body.” The House would represent the constituency and legislate on their behalf while the senators would specifically show allegiance first and foremost to their States.

In fact, no issue was more important to our Founders than the balance of power between the States and the new federal government. They knew first-hand what it was like for a government thousands of miles away to issue a decree that forced private citizens to comply and forfeit treasure in the form of unjust taxes. From his “throne” in the White House, a US president can declare anything he deems important as a “national emergency” thereby allowing federal agencies to prohibit what individuals can and cannot do, require or compel them to do what they ordinarily would never agree to do, and suspend their civil and individual liberties. From that same throne, he can issue an executive order and regulate the behavior of fishermen on both coasts of the United States, and in doing so, can steal their livelihoods by denying them the right to fish. From his “throne” in the president’s cabinet, the Secretary of the Department of Interior can declare any animal, bug, bacteria, virus, or species of plant to be an endangered species, thereby assuming authority to regulate the behavior of private citizens on whose land one of those endangered species may happen to inhabit or possibly inhabit, as well as to regulate the land itself.

In other words, our Founding Fathers put a critical element of federalism directly in our bicameral Congress. If the House attempted to pass a law that was deemed unconstitutional, for example (and quite likely) or if the President abused his Treaty-making or judicial appointment powers, the States, through their senators, could immediately block such laws and presidential abuse. To use the language of Thomas Jefferson, the Senate, acting on behalf of the States, could immediately “nullify” (to render “null and void”) such unconstitutional laws and prevent them from being enforced on sovereign States and on a free people. This government feature was potentially the last and one of the strongest of checks and balances in our constitutional system of checks and balances. I will address this issue in more detail below. Ultimately, I hope to emphasize that we NEED TO REPEAL THE 17th AMENDMENT. Our government, now more than ever, needs to revert to the original method of selecting US senators.

Did our Founding Fathers intend for the US Senate to act as an integral element of federalism in our government structure?  I believe so.

Having just fought a revolutionary war against Great Britain and defeated the powerful nation to be recognized as independent sovereign states (and eventually as an independent sovereign nation), our Founding Fathers were distrustful of tyrannies, fearful of governments becoming arbitrary and capricious, obsessed with designing and creating a limited “common government” to regulate common functions of all States and just as importantly, to secure and safeguard the rights and liberties of the American people.

The Constitution Center explains on its website that after returning from France in 1789, Thomas Jefferson supposedly asked George Washington, during breakfast one morning, why Washington had agreed to the creation of the US Senate in the Constitution. Noting the saucer on which Jefferson’s hot morning beverage rested, Washington explained, “we pour our legislation into the senatorial saucer to cool it.” Is this story really true? Apparently ,no one can confirm it. Nonetheless, it nicely captures what the Framers hoped to achieve in establishing the US Senate. First, and most importantly, as reflected in Article I, Section 3, the Framers designed the Senate, like they had other fixtures within the Constitution, such as the Electoral College and the judiciary, to be independent of the voting majority. The Senate was originally designed, created, and empowered to function in ways that frustrated direct democracy and designed to keep the House of Representatives in check. Second, it was designed to temper government passions and slow down the legislative process, giving government more time and wisdom (hopefully) to act in the most judicious, responsible, and rational manner – for the good of the country.

In fact, the Constitution originally treated Senators quite differently. In the original design, Senators were chosen by their respective State legislatures, and as a result, they were subject to instruction and recall if they did not do what their legislatures instructed them to do. (Note that while the Constitution provided the minimum age for membership in the House of Representatives to be 25 and for every seat in the House to be up for re-election every two years, it provided that senatorial candidates have a minimum age of 30 in order to serve in the Senate and for each Senator’s term to last for six years. The relatively higher minimal age requirements for Senators and longer lengths of Senate terms were designed to increase the likelihood that Senators would be better educated and more disposed than their House counterparts to take the long view on important issues. The distinction of powers for the House and the Senate – namely, the Senate’s responsibility to ratify treaties and judicial appointments by the president and its sole power to remove a president after being “impeached” (convicted) by the House – would seem to explain why there are different criteria expected of each chamber representative. Such specific responsibilities, as James Madison explained it in Federalist No. 58, serve as “a shield to some particular interests, and another obstacle generally to hasty and partial measures.”

All that changed in 1912 when Congress passed the proposed Seventeenth Amendment on May 13 and then when the States ratified it on April 8, 1913. The Seventeenth Amendment reads: “The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.”  [The amendment also altered the “filling of vacancies” clause]. In short, the Seventeenth Amendment calls for a dramatic change in how US senators are selected. From 1913 to today, senators are chosen and elected by the people. They have become political creatures rather than representatives of the States and their sovereign interests and concerns.

Indeed, the Seventeenth Amendment totally transformed the Senate and its essential and critical purpose. And this has been very unfortunate. By making Senators subject to popular election in their respective States, it effectively democratized the Senate and, in doing so, abandoned one of the critical differences between the House and the Senate, namely, the primary allegiance of senators to their individual States. The change introduced by the Seventeenth Amendment has made it easier for Senators to pay less attention to local or state leaders’ concerns, to ignore fundamental state issues and concerns, and to ignore the critical importance of federalism and instead more prone to follow the popular will. It essentially created a second body of democratically-elected representatives, each one beholden to the people. It has dealt a dangerous blow to State sovereignty. To be honest, I don’t know what possessed the States to ratify the amendment in 1913.

The growing power in the federal government for the past one hundred years has been possible because of the loss of this critical element of federalism. Because both the House members and senators are elected directly by the people, there is no check or balance on the power of the federal government. Were the Senate body still the instrument of the collective power of the state governments, there could be some pushback when the federal agencies intrude into jurisdictions that should rightfully belong to the States.

I do know, however, that many constitutional scholars believe that it was after the ratification of this transformative Amendment that the Senate joined the House in expanding the size and scope of the federal government to unprecedented degrees, all at the expense of State sovereignty. With this Amendment firmly in place, these scholars argue further that there is no turning back from this foundational transformation.

Before going any further, I’d like to spend just a few paragraphs on the US Constitution.

What is a Constitution –

What is a constitution anyway?  A constitution is the act of a People governing themselves. It is a social compact among members of a society agreeing and acknowledging a particular form of government. The agreement creates and establishes a government and delegates powers to it. The powers delegated are transferred from the original source of sovereign power – the individual  …. We the People.

The Individual, inherently vested by God and by Nature to govern himself, can technically use whatever type of force he deems necessary to protect himself, his family, or his property, including murder. When individuals form together in a society, an agreement (ie, compact/contract) is necessary to establish a uniform set of laws to govern conduct and behavior for the benefit of everyone and to establish a government to execute and enforce those laws. That is the purpose of a constitution. For example, we wouldn’t want Mr. Smith to shoot Mr. Jones for simply picking an apple off his apple tree.

Our US Constitution is exceptional, not only in its words and provisions, but perhaps in the fact that it embodies a unique idea. Nothing like it had ever written and established before. The power of the idea was in the recognition that individual rights are granted directly by the Creator and not by the state (government). And following that premise, it is the people, and only them, that are able to delegate authority to their government. The concept is so simple and yet so very fundamental, far-reaching, and yes, revolutionary.

America’s founders embraced a previously unheard-of political philosophy which held that people are endowed by their Creator with certain unalienable rights. This was the statement of guiding principle for the new nation, and, as such, had to be translated into a concrete charter for government. The Constitution of The United States of America became that charter. Other forms of government, as we all know, past and present, rely on the state as the grantor of human rights. If government can “allow” its people to exercise certain rights and privileges, they can also take them away. But our American Founding Fathers understood that such a system could never recognize and secure individual liberty, which was to be the founding ideal of America, and so they adopted John Locke’s belief that sovereignty vests first and foremost with the individual. Our Founders also believed that a government made up of imperfect people exercising power over other people should possess limited powers. Through the Constitution they created for us and our country, they wished to secure the blessings of liberty for Americans and for their posterity by limiting the powers of government. Through it, they delegated to government only those rights they wanted it to have, holding to themselves all powers not delegated by the Constitution. (See the limitations in the words and provisions of the Constitution, and especially the Ninth and Tenth Amendments). They even included a means for controlling those powers they had granted to government, and that is our governmental system of Checks and Balances. Many problems we face today result from a departure from this basic con­cept.

Thomas Jefferson and many other members of our founding generation were deeply influenced by the 18th-century European intellectual movement known as the Enlightenment, and most noticeably by English philosopher John Locke. Enlightenment philosophy stressed that liberty and equality were natural human rights. The novelty of the Declaration of Independence – that is, its most famous paragraph, the second one (“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…”) comes almost directly from the writings of John Locke. Locke discussed these themes in his Second Treatise of Government in 1689 at the time of England’s Glorious Revolution, which overthrew the rule of the arbitrary and tyrannical King James II.

The American colonies, then States, and finally the United States, were founded on a revolutionary and magnificent idea. Indeed, the world has changed and become a more civil place since the publication of the Declaration of Independence, the birth of the United States, and the creation of the US Constitution.

The US Constitution is brilliant in that the government so created not only governs the explicit affairs of the States (interstate commerce, money, border security, money, mail, etc) and governs We the People, but it also itself. It is the oldest, and most well-thought out, written constitution in the world.

Checks & Balances

The US Constitution created our federal government. The federal (a name used to incorporate the “federalist” nature of our government system) or “common” government was designed with 3 independent branches, each with its particular responsibilities. To keep each branch confined to its particular responsibilities, our Founding Fathers devised an ingenious system of checks and balances. Actually, the concept was addressed earlier by the French philosopher, Baron de Montesquieu. In his famous work “The Spirit of the Laws,” Montesquieu argued that the best way to prevent the concentration of power arbitrarily in a single branch was through a separation of powers, in which different bodies of government exercised legislative, executive, and judicial power, with all these bodies subject to the rule of law. In addition, each branch enjoys a power that “checks” a power of another branch.

The system of checks and balances is an important part of the Constitution. With checks and balances, each of the three branches of government are given specific abilities to limit the powers of the others. And this way, theoretically, no one branch could become too powerful. The caveat, however, is that should branches collude and work together, then checks and balances will not work to prevent a concentration of government power.

The most obvious of this system of checks and balances is that the president can veto any bill passed by Congress, but a two-thirds vote in Congress can override the veto. Other examples include:

  • The House of Representatives has sole power of impeachment, but the Senate has all power to try any impeachment.
  • Any bills that intend to raise revenue must originate in the House of Representatives, but the Senate also has to approve the bill.
  • Congress has the power to set and collect any taxes or duties.
  • The House of Representatives and the Senate both have to pass the same bill before it can become a law.
  • The president is commander-in-chief of the U.S. Army and Navy.
  • The president has the power to grant pardons and reprieves for crimes against the U.S. except in an impeachment.
  • The president can make treaties, but only with a two-thirds agreement from the Senate.
  • The president can appoint Supreme Court judges, but the Senate must approve these choices.
  • Supreme Court judges have the power to declare presidential and Congressional actions as unconstitutional.
  • The vice president is also automatically the president of the Senate.
  • Congress can propose amendments to the Constitution, which, of course, must be ratified by three-fourths of the individual States.
  • Congress can pass laws, or propose amendments to the Constitution (as mentioned above) that essentially can override a Supreme Court decision. (see the Reconstruction era amendments).
  • The States, upon application by two-thirds majority, can apply to the Congress to call a Convention whereby they have the ultimate sovereign power (supreme even to the federal government) to amend, change or even discard the Constitution.

In 1787, the States set out “to amend the Articles of Confederation” in order to overcome its defects. But the agenda soon changed when the delegates met in Philadelphia that summer. Their goal was to create a new constitution that would give a central or common government power to act nationally but not take away the rights of any State or its people. They specifically wanted to avoid a government that copied the king of England and his parliament.

As mentioned earlier, having US senators selected by state legislatures and therefore acting for the benefit of state interests, state sovereignty, states’ rights, was a powerful check and balance, integrated physically and meaningfully in the very design of the legislative branch. Sadly, that immediate check is no longer able to act for our benefit, which is to check the power of Congress and the president so that our essential rights and liberties remain safe and secure

Federalism –

Federalism is our strongest and most effective form of “Check and Balance.” Federalism is a system of government in which the same territory is controlled by two levels of government.  It is often referred to as our system of “dual sovereignty.” Our Founding Fathers designed a government which is predicated on the division of political power between the national or federal government and the individual States. Technically, it was the sovereign States that surrendered a limited number of their sovereign powers to the federal government to exercise for their mutual benefit, while retaining most of them. The Constitution clearly reflects this by its express enumeration of powers delegated to the new government it created as well as by the addition of the Tenth Amendment (a remnant of the Articles of Confederation), which restates the principal of federalism. “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.” James Madison went on to explain this division in his essay The Federalist No. 45:

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States.”

Our system of dual sovereignty implies that each sovereign possesses a specific sphere of governing power. And that separation of power implies that each sovereign will jealously guard their powers. Because of this tension, they will take note of when the other side infringes on and usurps their sovereign powers. The system created is necessarily adversarial, just like the legal system whereby the two opposing attorneys vigorously defend their clients and go against each other in a court of law.

Why is this unique government design feature so critical to our idea of government?

Federalism is one of the most important and innovative concepts in the design of our American government system and in the drafting of the Constitution, although the word never appears there. In America, the states existed first and they struggled to create a national government that would not compromise their sovereignty.  The US Constitution is “hardwired” with the tensions of that struggle, and in fact, the States demanded that the Tenth Amendment be added to remind the federal government and to remind the People that its powers are limited to the plain words and provisions in the Constitution and the remainder are reserved to the States. (The language of the Tenth Amendment is extremely similar to Article II of the Articles of Confederation). The Tenth Amendment reads: “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.”  It emphasizes that the inclusion of a Bill of Rights does not change the fundamental character of the national government. It remains a government of limited and enumerated powers, so that the first question involving an exercise of federal power is not whether it violates someone’s rights, but whether it exceeds the national government’s enumerated powers.

Note that the Ninth and Tenth Amendments also evoke themes of popular sovereignty, which was articulated in the Declaration of Independence, and which highlights the foundational role of the people in the constitutional republic. “A government of the people, by the people, and for the people.”

Perhaps most importantly, however, federalism is the last and most important of our checks and balances. When all other means of checks and balances fail to curb the ambition of the federal government, the States can always use their authority as an equal sovereign (some might say a superior sovereign) to resist the government in DC and refuse to acknowledge and enforce an unconstitutional law, federal policy, executive order, or emergency order, as well as a federal court opinion which is deemed an exercise in judicial activism and/or an erroneous interpretation of the Constitution. [See Nullification]. And that makes it the most critical in helping to keep the federal government in check and preventing it from usurping powers not specifically delegated to it and becoming too large and tyrannical.

To repeat, having US senators selected by state legislatures and therefore acting for the benefit of state interests, state sovereignty, states’ rights, was a powerful check and balance, integrated physically and meaningfully in the very design of the legislative branch. Again, that immediate check is no longer able to act for our benefit, which is, of course, to check the power of Congress and the president so that our essential rights and liberties remain safe and secure.

Nullification –

Nullification is the legal theory that holds that the States can refuse to comply with federal laws that they deem to be unconstitutional. Thomas Jefferson articulated the doctrine/theory in his Kentucky Resolutions of 1799, in which he also added the term to our lexicon:

RESOLVED, That this commonwealth considers the federal union, upon the terms and for the purposes specified in the late compact, as conducive to the liberty and happiness of the several states: That it does now unequivocally declare its attachment to the Union, and to that compact, agreeable to its obvious and real intention, and will be among the last to seek its dissolution: That if those who administer the general government be permitted to transgress the limits fixed by that compact, by a total disregard to the special delegations of power therein contained, annihilation of the state governments, and the erection upon their ruins, of a general consolidated government, will be the inevitable consequence: That the principle and construction contended for by sundry of the state legislatures, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who administer the government, and not the constitution, would be the measure of their powers: That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those sovereignties, of all unauthorized acts done under colour of that instrument, IS THE RIGHTFUL REMEDY: That this commonwealth does upon the most deliberate reconsideration declare, that the said alien and sedition laws, are in their opinion, palpable violations of the said constitution; and however cheerfully it may be disposed to surrender its opinion to a majority of its sister states in matters of ordinary or doubtful policy; yet, in momentous regulations like the present, which so vitally wound the best rights of the citizen, it would consider a silent acquiescence as highly criminal: That although this commonwealth as a party to the federal compact; will bow to the laws of the Union, yet it does at the same time declare, that it will not now, nor ever hereafter, cease to oppose in a constitutional manner, every attempt from what quarter soever offered, to violate that compact:

Jefferson’s Kentucky Resolutions of 1799 followed up on his earlier draft – The Kentucky Resolutions of 1798 in which he essentially stated the same thing, just not using the exact term “nullification.”  James Madison drafted a similar set of resolutions in 1798 – The Virginia Resolutions of 1798. In that document, he introduced another word to our lexicon – “Interposition,” which is the act of intervening or interposing between government and the People. (Interposition is a claimed right of a U.S. state to oppose actions of the federal government that the state deems unconstitutional). Here is the language Madison used:

That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and ARE DUTY BOUND, to INTERPOSE for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.

The resolutions, which were written specifically to motivate the individual States to declare John Adams’ “Sedition Act” (of 1796) unconstitutional, assert and re-state two key founding propositions: First, the Union is a compact among individual states that delegates specific powers to the federal government and reserves the rest for the states to exercise themselves. Second, it is both a right and a duty of individual states to interpose themselves between their citizens and the federal government. On these bases, Virginia’s resolution, penned by Madison, declared that the Sedition Act was unconstitutional and that measures should be taken by all states to retain their reserved powers under the Tenth Amendment. Jefferson’s Kentucky Resolution took Madison’s theory of interposition a step further and concluded that because the Sedition Act was unconstitutional, it was null and void and therefore unenforceable. That is, because it exceeded the powers delegated to the US Congress and the US President, they were null and void from the inception and from the moment of its passing. [Note, the Resolutions actually accused the Alien and the Sedition Acts (of 1796) of being unconstitutional, but the Sedition Act was the most offensive].

Checks and balances and especially state nullification & interposition are peaceful remedies to keep the government from becoming tyrannical. Without these “peaceful” remedies, we face violent remedies such as revolution, secession, and war. In making their case for nullification and interposition at the time of the Alien & Sedition Acts in 1798, Jefferson and Madison made this important point.

Nullification, as explained above, is an American founding legal theory, just as secession is. They transcend the Constitution in that no government can regulate or abolish such doctrines and theories. And since the Constitution delegates powers to the federal government, and nullification and secession are intentionally withheld, they are not mentioned in that founding document. Just as we as individuals have “inalienable rights” that no government can violate or take away from us, the States (as individual and independent sovereigns) have the inalienable powers of nullification and secession. If anyone wishes to find even a hint of these powers in our Founding documents and in our Constitution, I would argue that they are implied in the second paragraph of the Declaration of Independence, our federal government structure (“federalism”), and in the Tenth Amendment. Throughout US constitutional history, legitimate scholars have held that the States have the right to declare null and void any federal law that they deem to be unconstitutional under the US Constitution. Of course, nullification is considered an “extreme application” of States’ rights. Of course it would be labeled as such because IT IS !!  As I mentioned earlier, nullification is the last, most important, and most effective of checks and balances on the federal government. Because of its power to limit the ambition of the federal government, the federal government refuses to recognize it (characterizing it as “not legitimate”) and the federal courts have never upheld it.

About 20 years ago, while I was helping to run the NC Tenth Amendment Center, I predicted that the day would come when Americans would finally become acquainted with the doctrine of Nullification, and I believe we are seeing that happen. Today, States continue to enact laws and policies essentially nullifying and resisting federal laws in areas such as health care regulation, gun control, and abortion within their borders.

Once again, having US senators selected by state legislatures and therefore acting for the benefit of state interests, state sovereignty, states’ rights, was a powerful check and balance, integrated physically and meaningfully in the very design of the legislative branch. That immediate check is no longer able to act for our benefit, which is, of course, to check the power of Congress and the president so that our essential rights and liberties remain safe and secure.

Some Examples –

Let’s look at some specific cases where an originally-intended US Senate would have rescued Americans from federal over-reach.

In February 1938, the US Congress passed a major piece of New Deal legislation – The Agricultural Adjustment Act of 1938. The program was enacted as an alternative and replacement for the farm subsidy policies, with its goal being the restoration of agricultural prosperity during the Great Depression by curtailing farm production, reducing export surpluses, and raising prices. The bill established limits on wheat production, based on the acreage owned by a farmer, in order to stabilize wheat prices and supplies. Farmers who grew in excess of the limits set by the bill were fined. The Agricultural Adjustment Act was passed to replace a previous farm subsidy bill – the New Deal’s Agricultural Adjustment Act of 1933 – which had been found to be unconstitutional (as exceeding Congress’ taxing power). The act revived the provisions in the previous Agriculture Adjustment Act, with the exception that the financing of the law’s programs would be provided by subsidies from general tax revenues instead of a new tax.

How might things have worked out if the US Senate has been comprised of representatives appointed by their state legislatures to represent state interests?  Being that the United States was in the Great Depression (the worst economic downturn in the history of the industrialized world, lasting from 1929 to 1939), was being led by President Franklin Delano Roosevelt and his New Deal program, and realizing that a war was beginning in Europe and threatening to reshape the political and geographical landscape, the US House would undoubtedly have passed the bill. The bill would then have gone over to the Senate. The States, informing their representatives that the bill potentially would give the federal government too much power, would have emphasized that the bill was unconstitutional. The Senate would have (hopefully) voted against the bill, thereby preventing it from becoming law and preventing the federal government from abusing the Constitution’s Commerce Clause.

If the Senate can ever derail a piece of unconstitutional federal legislation or strike it down, and thereby preventing it from going to the federal courts, that should be its goal. Allowing a federal bill to go to the federal courts, including and especially the Supreme Court, gives the court (liberal court) the chance to find in favor of the government and to implicitly expand its powers. It should be noted that it has been the federal judiciary over the many years that has recognized and affirmed ever larger and expansive powers to the federal government.

The Agricultural Adjustment Act of 1938 was especially noteworthy in that it was at the center of a so-called “landmark” Supreme Court case – Wickard v. Filmore (1942). Some may remember that the Obama administration cited Wickard when it defended its signature bill, the Patient Protection and Affordable Care Act (PPAC). What Obama was insinuating was that the federal government has almost absolute power when it comes to regulating commerce.

In 1940, Ohio farmer Roscoe Filburn became the plaintiff in the lawsuit, challenging the constitutionality of the federal farming bill. For many years, he had owned and operated a small farm in Montgomery County, Ohio, maintaining a herd of dairy cattle, selling milk, raising poultry, and selling poultry and eggs. It had been his practice to raise a small acreage of winter wheat, sown in the fall and harvested in the following July, to sell a portion of the crop, to feed part to the chickens and livestock on the farm, to use some in making flour for he and his family, and to keep the rest for the following season’s seeding.

Farmer Filburn admitted producing wheat in excess of the amount permitted by law but maintained that the excess wheat was produced for his private consumption on his own farm (as explained above) – specifically to feed the animals on his farm. Since it never entered commerce at all, much less interstate commerce, he argued that it was not a proper subject of federal regulation under the Commerce Clause.

The case made it all the way up to the US Supreme Court. By the time the case reached the high court, eight out of the nine justices had been appointed by President Franklin Roosevelt, the architect of the New Deal legislation. In addition, the case was heard during wartime, shortly after the attack on Pearl Harbor galvanized the United States to enter the Second World War. Filburn argued that since the excess wheat that he produced was intended solely for home consumption, his wheat production could not be regulated through the Interstate Commerce Clause. The Supreme Court rejected the argument and reasoned that if Filburn had not produced his own wheat, he would have bought wheat on the open market.

Nevertheless, the Supreme Court ruled against Filburn and for the government. In fact, the Court not only recognized the Commerce Clause as being the source of the government’s power, but greatly enlarged that power.

The opinion of the Court read: “Whether the subject of the regulation in question was ‘production,’ ‘consumption,’ or ‘marketing’ is, therefore, not material for purposes of deciding the question of federal power before us. That an activity is of local character may help in a doubtful case to determine whether Congress intended to reach it…. But even if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as ‘direct’ or ‘indirect.’

In other words, the Supreme Court greatly expanded the meaning of the Constitution’s Commerce Clause – from its original meaning, which was “interstate commerce” to “anything that directly or indirectly has an effect on interstate commerce.”  Anything and almost everything can be found to have an indirect effect on interstate commerce. This means that the Supreme Court has recognized a plenary (absolute) power to regulate commerce.

Note that one of the most important of our founding values has been the right of private property and the ability to use one’s property to its fullest potential. One such “potential” is to use the land to grow food for personal consumption. To want to grow wheat to feed one’s farm animals certainly would be covered by such an assumption.

Wickard marked the beginning of the Supreme Court’s total deference to the claims of the U.S. Congress to Commerce Clause powers until the 1990s.

The post-New Deal Supreme Court, through the opinion in Wickard and in subsequent opinions related to New Deal programs gave Congress almost limitless power to regulate private economic activity as it saw fit. That greatly-expanded interpretation of the Commerce Clause remained in effect until the Supreme Court decided the case of United States v. Lopez (1995), which was the first decision in six decades to invalidate a federal statute on the grounds that it exceeded the power of the Congress under the Commerce Clause. The opinion described Wickard as “perhaps the most far-reaching example of Commerce Clause authority over intrastate commerce” and judged that it “greatly expanded the authority of Congress beyond what is defined in the Constitution under that Clause.”

It is important to note that the federal courts have been the legal gate that has consistently allowed the federal government to grow and concentrate its powers, even by usurping them from the rightful sovereigns, which are the States and the People. (Roe v. Wade was one such case and Obergefell was another). Do you see a pattern here? This is exactly what our Founding Fathers feared – a federal monopoly over the meaning and intent of the US Constitution.

Remember back during Barack Obama’s administration when he fought and schemed to get a government health insurance bill (“Obamacare”) passed. If it weren’t for an egregious intervention by Supreme Court Chief Justice John Roberts, a blatant act of judicial activism, the Patient Protection and Affordable Care Act (PPAC, or “Obamacare”) would have been found to be unconstitutional. There was no Article I power to sustain it. Yet Roberts gave it federal “life” and a constitutional basis when he used legal magic to link it to Congress’ power to tax. Twenty-six States filed suit to have it declared unconstitutional. [See the National Federation of Independent Business, et al v. Sebelius, 2012].

Here is how that situation would have worked out if the Senate represented the interests of the States: The US House would have passed the bill and then it would have gone over to the Senate. The States, informing their representatives, would have emphasized that the bill was unconstitutional and infringed on an area traditionally and historically reserved to the individual states. The Senate would have voted against the bill, thereby preventing it from becoming law. Alternatively, the bill could have gone back to the House where defects could have been addressed to bring it in line with the Constitution and then it could have gone through the passage procedure with better luck.

The 1985-86 US Congress passed a bill titled the “Firearms Owners’ Protection Act” (codified as 18 U.S.C. 924) which amended the Gun Control Act of 1968 to redefine “gun dealer” and to exclude those making occasional sales or repairs. It also exempts certain activities involving ammunition from current prohibitions, permits the interstate sale of rifles and shotguns, provided that: (i) the transferee and transferor meet in person to accomplish the transfer; and (ii) such sale complies with the laws of both States. Furthermore, it presumes the licensee to have actual knowledge of the laws of both States. It revises the current prohibition against the sale of firearms or ammunition to certain categories of individuals and makes it unlawful, with certain exceptions, for any individual to transfer or possess a machine gun. [for a more detailed list of amendments, go to this government link:  https://www.congress.gov/bill/99th-congress/senate-bill/49 ]

The statute 18 U.S.C. 924 contains a “Penalties” provision – 18 U.S.C. 924 (c)(1)(A):

(c)(1) (A) Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime,

(i)  be sentenced to a term of imprisonment of not less than 5 years…… 

There was a potential constitutional problem with this provision. Nowhere in the statute is “crime of violence” defined as having “violence” as one of its elements. This problem wasn’t addressed until 2019.

In 2019, in the case United States v. Davis, the Supreme Court held that this provision, which provides enhanced penalties for using a firearm during a “crime of violence,” is unconstitutionally vague. As such, it violates the Due Process clause of the Fifth Amendment. The judicial doctrine of prohibiting the enforcement of vague laws rests on the twin constitutional pillars of due process and separation of powers. Only the people’s elected representatives in the legislature are authorized to “make an act a crime.” Vague statutes threaten to hand responsibility for defining crimes to relatively unaccountable police, prosecutors, and judges, eroding the people’s ability to oversee the creation of the laws they are expected to abide and the right to know clearly and exactly what type of behavior a law prohibits. Unconstitutionally vague statutes are easy for law enforcement officers to abuse and they open the door to judicial activism.

How could a Senate comprised of representatives appointed by state legislatures been able to prevent the problem with this law? States are exceedingly scrutinous in laws affecting the right to keep and bear arms. Assuming that States select their brightest to represent them in the Senate, the body of Senators would likely have picked up on the “vagueness” problem. The Senate would have refused to affirm the bill, would have sent it back to the House for amending, and then taken it up again only after its constitutional defects were remedied.

In 2020, several cases were brought citing employment discrimination on the basis of sexual preference and on transgender status. They alleged that Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sexual orientation and/or transgender status. The cases were consolidated in the case of Bostock v. Clayton County, Georgia, and the question before the Court was whether Title VII’s prohibition against employment discrimination “because of . . . sex” includes discrimination based on an individual’s sexual orientation and gender identity.

The Supreme Court found that each of the plaintiffs was protected under Title VII. In a 6-3 decision written by Justice Neil Gorsuch, the Court found that each of the employees’ sex played a role in their adverse employment actions and, applying a literal interpretation of the statute, concluded such discrimination is forbidden. The Court acknowledged the employers’ argument that Congress, when it enacted Title VII, contemplated that “the term ‘sex’ in 1964 referred to ‘status as either male or female as determined by reproductive biology.’”

Congress, in 1964, could have included a provision to ban discrimination based on “sexual orientation” and on “gender identity” but it did not. In dissenting opinions, Justices Samuel Alito (joined by Justice Clarence Thomas) and Justice Brett Kavanaugh stated that the majority departed from Congress’s intent when Title VII was enacted. The majority, however, asserted that the statute’s text should serve as the measure of Congress’s intent and that “when the meaning of the statute’s terms is plain, our job is at an end.”

The Supreme Court committed judicial activism in the Bostock case, by substituting its interpretation for the interpretation of the legislature (Congress). What the Court should have done was to remand the bill back to Congress for amending, if deemed important enough. Laws are the supreme province of the legislature.

How could a Senate comprised on representatives appointed by their state legislatures been able to intervene on such a situation? Such a state-led body of Congress could have issued a public statement asserting a policy whereby the Senate judicial confirmation process will be infinitely more scrutinous, making sure to vet each appointee thorough, pinning them down on where he or she stands on judicial activism, interpretation ideology, views on issues and prior Court opinions, etc. With the Senate being the States’ “check and balance” to a president’s judicial appointments, its members can make that confirmation grueling.  

In July 2022, the US House passed a federal gun control law – H.B. 7910 (“Protecting Our Kids Act”) which would make various changes to the federal firearms laws, including establishing new criminal offenses and expanding the types of weapons and devices that are subject to regulation. Among the other changes the bill proposes to make are the following:

  • prohibits (generally) the sale or transfer of certain semiautomatic firearms to individuals who are under 21 years of age;
  • establishes new federal criminal offenses for gun trafficking and related conduct;
  • establishes a federal statutory framework to regulate ghost guns (i.e., guns without serial numbers);
  • establishes a framework to regulate the storage of firearms on residential premises at the federal, state, and tribal levels;
  • subjects bump stocks to regulation under federal firearms laws;
  • generally prohibits the import, sale, manufacture, transfer, and possession of large capacity ammunition feeding devices; and
  • requires the Department of Justice to report on the demographic data of persons who are determined to be ineligible to purchase a firearm based on a background check performed by the national instant criminal background check system.

Think of how a Senate comprised of representatives appointed by the state legislatures would react to such a federal gun control law. States – most states, that is – are very protective of the right to keep and bear firearms without burdensome federal regulations.

Think of how a State-led Senate would handle the border issue and the illegal immigration issue and the drug trafficking and sex trafficking issues. These are particularly important and critical issues to the States and consequently, they would make sure their representatives in the Senate did the right thing to force the federal government to take its responsibility at the border very seriously.

The Senate, as the Founders agreed, should be the legislative body for the individual States. They understood that the House of Representatives would be the body that represents the people and therefore, each State would have representation that correlates with its population. The small states, at the Philadelphia Convention, were concerned that this way of selecting legislative representatives would discriminate and be disadvantageous to them and consequently, their influence, their concerns, their issues, etc would be minimized and essentially ignored in the US Congress. The Senate, therefore, was proposed as a co-equal legislative body with equal representation of all States – each State getting 2 senators. It made sense. As a co-equal legislative body, and as a direct representation of the States, the States could feel comforted that they were represented equally by their new “common” government.

Once again, the transformation of the US Senate in 1913 by the addition of the Seventeenth Amendment to our Constitution weakened one of the strongest connections between Senators and their States as sovereign entities and destroyed one of the strongest and most important of constitutional/governmental checks and balances. It has made it easier for Senators to pay less attention to local or state leaders’ concerns about federalism and more prone to follow the popular will, even if it has meant sacrificing State sovereignty, and we have certainly seen this over the past 100 years or so. Our Founding Fathers and the drafters of our precious founding documents did their jobs with the utmost skill and intelligence, basing all decisions upon a diligent study of history, with the urging of Providence, and with their ultimate goal in mind – the preservation and security of individual rights and liberty.

I’ll make the point yet again – The Constitution holds all the answers for the problems that are plaguing our country. And most of the problems stem from a government that has consistently ignored its Constitutional limits, has been overly ambitious, and has played more to politics than to the American people. Furthermore, ambitious politicians and ambitious political parties have weaponized the federal government for their own purposes. One particular remedy, the US Senate, as described and recognized in the original Constitution (Article I, Section 3) is very important as it puts the power of the States directly in the business of government. Unfortunately, the Seventeenth Amendment was passed to take that remedy away.

I therefore urge citizen activists to contact their state representatives and their DC representatives to demand that the Seventeenth Amendment be repealed. This way, having US senators selected by state legislatures and therefore acting for the benefit of state interests, state sovereignty, states’ rights, can once again be an immediate and powerful check and balance on the federal government, integrated physically and meaningfully in the very design of the legislative branch. Of course, keeping the federal government limited and confined to the restrictions in the Constitution, is the best way to maintain and secure our precious and essential rights and liberties.  

Of course, the most important reason to repeal the Seventeenth Amendment is to restore the rightful balance of power between the federal government and the State governments, and in doing so, restoring the rightful balance of political power between the federal government and the People.

I hope I have made that point clear.

REPEAL THE SEVENTEENTH AMENDMENT !!!

References

Federalist No. 45 (written by James Madison) – https://avalon.law.yale.edu/18th_century/fed45.asp

Interpretation of Article I, Section 3, The Constitution Center – https://constitutioncenter.org/interactive-constitution/interpretation/article-i/clauses/765

Kentucky Resolutions of 1799 (written by Thomas Jefferson), The Avalon Project –  https://avalon.law.yale.edu/18th_century/kenres.asp  

Virginia Resolutions of 1798 (written by James Madison) – https://billofrightsinstitute.org/primary-sources/virginia-and-kentucky-resolutions

Henry Lamb, REPEAL 17 NOW! Why the 17th Amendment Should Be Repealed and How to Do It, National Center for Constitutional Studies, January 2011.

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The Problems With America’s Public Schools

by Diane Rufino, July 27, 2022

The first occurs during ages 2-7, with a second one occurring during adolescence. At the start of these periods, the number of connections (synapses) between brain cells (neurons) doubles. What this means is that 2-year-olds have twice as many synapses as adults. Because these connections between brain cells are where learning occurs, twice as many synapses enable the brain to learn faster than at any other time of life. Therefore, children’s experiences in this phase have lasting effects on their development. The opportunity to learn is great, children have an enhanced ability to soak in a wide range of skill sets, but the brain still needs a lot of re-modeling before it can function as an adult brain.

And then there is the second phase, in adolescence. The brain re-modeling happens intensively during adolescence, continuing until a child is in his or her mid-20s. Brain change depends on age, experience, and hormonal changes in puberty. During adolescence, the brain undergoes a process known as “pruning.” The frontal part of the brain, the prefrontal cortex, is pruned or re-modeled last. The prefrontal cortex is the decision-making part of the brain which is responsible for a child’s ability to plan and think about the consequences of actions, solve problems and control impulses. Changes in this part of the brain continue into early adulthood.

Essentially, teenagers are working with brains that are still under construction.

The combination of a child’s unique brain and environment influences the way he or she acts, thinks and feels. For example, the child’s preferred activities and skills might become ‘hard-wired’ in the brain.

Why is this important and critical?  It’s important because the school-age years have the great potential of making the most permanent influence on a child. Preferred activities and viewpoints have the potential to become “hard-wired’ in their brains. School activities and sports pose a healthy influence on children; teaching (ie, indoctrinating) such progressive and controversial doctrines and policies pose an unhealthy influence on them.

These are the years when parents, family, and the church are the rightful parties to influence them on moral and social issues. Certainly, the progressive school system is not. Teachers do not know better than parents. The indoctrination, the personal values, views, and politics of teachers and school officials must never supersede or undermine the values and views of a child’s parents, family, and church. Teachers and progressive school policies pose a potential danger to the development of a child’s brain development.

This article explores just a few of the failures affecting the American public education system today. We’ll also explore five of the biggest emerging trends in American education.

Policymakers are constantly fighting to make changes to the American public education system, and not all of them are beneficial. Over the years, there has been a great deal of back-and-forth that has left the public education system in shambles. Some of these problems are easy to identify and have been long-standing issues while others are new, brought about by advances in technology, changes in policy, and general change that happens with time.

Every story has two sides, and for every policy or program put into place, there are going to be proponents and critics. Below you’ll find an overview of some of the biggest issues facing the American public system as well as arguments from people on both sides of the issue.

1.  Parents are not Involved Enough — Teachers in public schools can only do so much to support their students. When the students go home for the day, the state of their home life can impact their development both personally and academically. In cases where parents lack higher education, they may not be able to provide the assistance students need to learn and to complete homework. Students in low-income families face additional challenges at home, though even middle- and upper-class families aren’t off the hook. In many families, parents are too career-focused and have little time to spend supporting their child’s education.

2.  Problems with the Common Core Curriculum — The Common Core State Standards were developed to specify exactly what students should know before graduating high school. It was developed in 2009 to promote educational equity across the country, holding all students to the same standardized testing requirements. Some see the problem as a federal intrusion into the state control of education and others say that it doesn’t allow for teacher innovation and flexibility with the learning process. Most states adopted the standards when they were introduced but more than a dozen have since repealed or revised them.

3.  Emphasis on Standardized Testing — Along with Common Core, there has been an increased focus on standardized testing, especially during the No Child Left Behind years. Schools and teachers are judged based on student test scores which, many argue, is not a fair or accurate measure of efficacy. Many critics argue that standardized testing is one of the biggest problems in American education, suggesting that the pressure to produce high test scores leads to a teach-to-the-test approach and reduced focus on non-tested subjects like art.

4.  Decline in School Safety — There has been a string of high-profile mass shootings in American schools, resulting not only in dozens of deaths but many debates about school safety. In one poll, over 50% of teenagers said they were worried about the possibility of gun violence in school. Teachers all across the country are faced with the problem of figuring out how to prevent attacks and protect the lives of students and personnel. Some suggest special straining for teachers and concealed weapons might make schools safer while critics argue that more guns in schools could lead to more accidents and injuries. Others suggest moving funding around to hire school safety officers, hiring veterans, or even asking for volunteer veterans to help keep school children, teachers, and personnel safe.

5.  School Choice, Including Charter Schools, Voucher Programs, and Home Schooling — A particularly hot topic in education today is school choice. Charter schools and school vouchers allow parents to choose options other than traditional public schools for their children, while home schooling appears to be the most popular alternative choice. Home schooling allows the parents to completely control their child’s education and curriculum, and college admissions offices admit that their best applicants have been home schooled. Charter schools are funded by a combination of private and public funds and operate outside the public school system. School vouchers allow parents to use public funds to send their child to a school of choice, including private schools. Supporters of school choice assert that “money should follow the student” while critics complain that charter schools and voucher programs siphon funds away from public schools that are already struggling financially.

6.  The Dilution of a Sound, Basic Education with Non-Essential and Non-Value-Added Progressive Policies and Curriculum Additions – Education is being replaced with INDOCTRINATION. While state boards of education and local boards of education are responsible for providing a robust, sound, and basic education (which is the rightful expectation of parents) and in most cases are constitutionally tasked “to guard and maintain the right to a sound, basic education for every child” in the state’s public schools,” they make decisions for our students (and in disregard of parents) that go completely against those expectations and instead push all kinds of non-value-added, harmful, and perverse progressive and leftist policies down the pipeline to all local public schools. [Note, the North Carolina Supreme Court determined in the 1997 case of Leandro v. State that children in NC are entitled to a “sound basic education”[.

What are these progressive policies? They actually have various names and take various forms:

  • Critical Race Theory (CRT)
  • Social Emotional Learning policies (SEL)
  • Panoramic Surveys (and other Identity surveys)
  • Equity & Inclusion Programs  (Advancing Social Justice, Racial Equality, and the stressing of ‘Equity’ over ‘Equality’)
  • LGBTQ policies and programs
  • Transgenderism and Gender Fluidity lessons
  • Progressive and Inclusive Sex Education in Health classes
  • Pornography in public school reading material

Critical Race Theory policy is perhaps the hottest issue that has parents all across the country up in arms over what is going on with the public school system and what is wrong with the public school system. CRT is all about indoctrinating students with anti-American history and divisive concepts regarding race. It asserts that the United States is historically, systemically, and structurally racist because that is how white persons can continue to benefit. Rather than bringing students together with love and respect for one another, and with an appreciation of our “differences” and our “diversity” (which, incidentally, supporters of CRT claim is our greatest strength), CRT divides students along racial lines, having them look first at skin color rather than looking at the “content of one’s character.”

Derrick Wilburn, an African-American father and pastor, told a school board back in August 2021: “CRT in the classroom is taking our country in the wrong direction. Racism in America would, for all intents and purposes, be dead today if it weren’t for certain individuals, a certain political party, and certain institutions keeping it on life support. Putting CRT in the classroom does nothing to combat racism. What it really does is to fan the flames of what little embers remain of this toxic and divisive form of discrimination. Members of the board of education, let racism die the death it deserves.”

Another hot issue is gender identity and the counseling and questioning by school officials of students regarding such. Parents have become horrified to discover that their school policy allows for, and implements, plans to help “transition” gender-confused children, without parents’ knowledge or consent. In some instances, school officials were instructed to use the students’ correct name and pronouns when speaking with parents, but transgender names and pronouns when parents weren’t present. Why are schools all of a sudden sexualizing of children, including small children. Remember what I wrote at the very start of this article – about the underdevelopment of a child’s brain and their inability to rationalize and analyze. When did it become the responsibility of the public school, a government institution, to discuss and question a child’s gender identity? The way I see it, such a conversation would only confuse a child and eventually cause psychological issues.

How do any of these policies and programs and curriculum additions further a robust “sound, basic public school education”?

7.  The Transformation of an Institution for Education Into One That Performs Therapy —  Parents are outraged that teachers and school officials are instituting counseling, including for gender identity issues and gender dysphoria, social emotional learning policies (SEL), and panoramic surveys to mine personal information on children.

SEL, according to progressive school board members and school administrators, helps school officials find out about students’ emotions and social awareness in order to help them manage in the public education setting. How do school officials gather this information?  They pass out a survey, a series of very personal questions asking about the child’s outlook, emotional status, gender status, home life, religious status, relationship with mother, relationship with father, inquiring if there is both a mother and father, asking how much time he or she spends alone at home without a parent in the house, asking if daddy hits mommy, asking if the child has been abused by a parent, asking if there is a gun in the house, asking if the child has had sexual relations and if so, with how many partners, asking if the student needs to speak to a counselor, etc.  The questions, aside from being very (and unnecessarily) probative, intrude most directly on a child’s right to privacy and the right of his or her parents to safeguard the information that the public school (and by extension, the government) collects. (Violation of privacy and a violation of parental rights). But the questions don’t stop with an inquiry as to the child’s emotional and psychological well-being. They ask unacceptable questions about sexuality and gender (unacceptable for the age and development of school-age children) as well as questions that can be used to report the child and the family to the departments of social services and to the local law enforcement agencies.

Panoramic Surveysare a series of carefully-designed questions, intended to pull students’ information together in one report apparently to give the school system insight into their individual identity, their emotional status and vulnerability, and psychological status and vulnerability for the purpose of helping to “improving student outcomes.”  The explanation sold to parents and to the community is that Panorama surveys provide a valid and reliable way “to measure and improve social-emotional learning (SEL) in the public school system.” SEL and Panorama have an incestuous relationship; SEL requires invasive Panorama Surveys to be administered to 1.5 million public school children via a software program attached to their student identifier number. Children are their sexuality, race, nationality, and about their lifestyles and safety at home. As if these series of questions aren’t enough, school-age children are also asked to complete a psychiatric evaluation.

A number of school systems all across the country are utilizing Panorama to collect student data – including information not related to “engagement and connection to the school community.” Why are they doing this?

8.  Equity in Education. Many believe that equality, rather than equity, should be the proper policy in the public school system, if it is to properly prepare students for the real world. Equity in education implies and indirectly teaches students that there is a dual social system – one for some people and another for minorities (mostly for minorities, I should say). “Equity in education” is the process of reforming practices, policies, and procedures at the school and district levels to support academic fairness and inclusion and ensure that every child has the resources, teachers, interventions, and supports they need to be successful. Equity, which is determined on a student-by-student basis, is giving specific resources and support to disadvantaged students to bring them up to the same opportunity level as their peers. In more simple terms, those who need more get more.

9.  Teaching Methods Are Changing, Thanks to Diversity & Inclusion Policies – The teaching methods of yesterday which have been based on the competition method (which reward students who work the hardest, study diligently, and invest in their education and get the best grades) are being replaced by “group think” and “group work/group projects” methods. The “competition” method has been criticized as being racist, with white students apparently benefitting most, while minority students aren’t successful using that method. They apparently learn best in groups, sharing in grades and often leaning on the smarter students to complete assignments and projects (after all, the smarter students would never allow themselves to get a substandard grade).

10.  The Substitution of Teachers and the School System for the Child’s Parents – Parents all across the country are getting off the couch, out of the kitchen, and out of their homes to confront their boards of education complaining that their “parental rights” are being disrespected and ignored. Many schools feel it is their job and their responsibility, and not the parents’, to make decisions for the benefit and in the best interests of the child. They are demanding that their state governments and local boards of education adopt a formal “Parents’ Bill of Rights.”  A sample Parent’s Bill of Rights might look something like:

  1. Education funds must follow students, not systems.
  2. Parents have the right to engage in the selection and approval of academic standards.
  3. Parents have the right to access educational materials, resources, and syllabi taught to their children in the classroom.
  4. Parents have the right to make medical care decisions on behalf of their children.
  5. Parents will receive timely notification of information related to the health, well-being, and education of their children.
  6. In-person education is a right that should always be available as a choice.
  7. Parents have the right to transparent access to school and school district academic performance.
  8. Parents have the right to access detailed and up-to-date district financial records.
  9. Parents have the right to opt their children out of the classroom for delivery of content listed in the syllabus with which they disagree.
  10. Parents have the right to know about situations affecting their minor child’s safety in school (individually or school-wide).. Parents shall be notified in a timely manner of all reported incidents pertaining to student safety, including all crimes or misdemeanors committed by teachers or other school employees.
  11. Parents should never have to “co-parent” with government. “Basic and sound education” is the sole province of government; parenting is the sole province of parents.
  12. The right to know what their minor child is being taught in school, including, but not limited to, curricula, books, and other instructional materials.
  13. Parents have the right to determine and choose which education environment will best serve their child’s education needs, without judgement from others or resistance by the school system, even if that environment is at home (home-schooling).
  14. Parents have the fundamental right to make decisions regarding their child’s education, well-being, and access to public school progressive indoctrination. Religion, morality, family and social values are matters to be directed and respected as belonging to parents.
  15. Parents shall not be required to sign non-disclosure agreements or similar forms for parental review of curricula and shall be allowed to make copies of curriculum documents.
  16. Parents have the right to visit their child during school hours and to be able to sit-in on their child’s class, upon making a request to do so.
  17. Parents have the right to be provided with information, data, and statistics as to the shortcomings or failures (as well as successes) of each school system their child can potentially attend.
  18. Parents have the right to information on who is teaching their minor child, including guest lecturers and outside presenters.
  19. Parents have the right to information on individuals and organizations receiving school contracts and funding.
  20. Parents have the right to all school records, medical or otherwise, concerning their (minor) child.
  21. Parents have the right The right to information about the collection and transmission of their minor child’s data. Schools and school districts shall obtain parental consent prior to collecting any biometric data or other sensitive personal information on the minor child.
  22. Parents have the right to be notified should the school feel the need to have a counselor speak to their child, and to have the right to refuse to have their child “counseled” by the school.
  23. Parents have the absolute right to be notified of and to be involved in the filling out of ANY questionnaire or survey that the school assigns to their child. Likewise, parents have the absolute right to refuse to have their child answer such questionnaires or surveys. Parents have the right to control what information is shared with the school system (ie, government).
  24. For parents of exceptional children: Parents have the right to have their child’s exceptionalism diagnosed and served by the education system.
  25. Parents shall be able to remove their child temporarily from a class or activity that conflicts with their religious beliefs.
  26. Parents have the right to be heard regarding complaints about their child’s education, their child’s teacher/teachers, and how their child is being instructed. School boards must establish a way to consider and respond to complaints from parents.
  27. Parents have the right to make suggestions to their child’s school regarding education and to be taken seriously. Parents have a stake in their child’s education and a duty to over-see how it is being delivered.
  28. Gender identity is a matter that lies with a child’s parents and not with the school system or the government.
  29. Parents shall be empowered to sue schools for injunctive relief that do not protect these rights. A pattern of such violations in a particular jurisdiction will trigger major reductions in education funding.

11.  Funding Issues with the Public School System — Funding is always an issue for schools and is, in fact, one of the biggest issues facing the American public education system today. The public school system never has enough money. Teachers are always crying for more funding for their classrooms and for their students. Approximately 85-90% of K-12 schools funding comes from state and local governments, largely generated by sales and income taxes. Research shows, however, that funding has not increased with need and many states are still issuing funding that is lower than it was before the Great Recession. Lower funding means fewer teachers, fewer programs, and diminished resources. The problems with the need for more funding are two-fold: It incentivizes states to seek federal funding (which, according to the express language of the US Constitution, is unconstitutional) and also means that teachers continue to make low wages. The benefit is that it allows and incentivizes teachers to be creative in their lesson delivery (which, after all, is where the real skill of a teacher lies).

12.  The Unions Have Too Much Power Over the State and Local Boards of Education – Concerned parents and concerned citizens are finally understanding the power that teacher unions have with respect to state and local boards of education. The unions have an iron grip on the delivery of publicly-funded education in government schools, Parents and concerned citizens need to work to break the monopoly that they have and insist that the only groups that technically and reasonably should have an iron grip are themselves.

In short, and in summary, state boards of education and local boards of education have become too political and too overly activist. We must never forget that “Whoever controls the education of our children controls the future.”  Look closely at who controls the education of our children. What kind of future are they looking to create?

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America, The Land That I Love

by Diane Rufino, July 11, 2022

I’m a long-time activist. I started a Tea Party group in 2009 in my area of North Carolina and have been running it ever since. I believe in the Tea Party movement because it embraces our core American values and principles and fights for them. I recently (November 2021) started another citizen-activist group, a conservative education advocacy group for outraged and frustrated parents and concerned citizens. The group not only has already made a difference with the local board of education but has inspired neighboring counties to form similar groups of their own.

I fight tirelessly for them. I fight because this is the land that I love. I wish more people would. As Ronald Reagan once said: “Freedom is never more than one generation away from extinction. We didn’t pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same, or one day we will spend our sunset years telling our children and our children’s children what it was once like in the United States where men were free.”

A growing number of Americans distrust the federal government. According to a Pew Research Center poll published on June 6, 2022 and a Monmouth University poll released on May 12, 2022, a growing number of Americans distrust the federal government and believe our country is headed in the wrong direction. “Only two-in-ten (20%) Americans say they trust the government in Washington DC to do what is right ‘just about always’ or ‘most of the time.’” Even more telling, 79% of Americans surveyed said that they believe the country has “gotten off on the wrong track.” The fact is that most Americans recognize that an all-out war is being waged against our republic and against every American’s individual liberty. That war is being waged in the name of socialism, social justice, and an uber-progressive agenda.

I fight for our founding values and principles because this is my country. I fight because this country, for better or worse, is the land that I love.

Why do I love her?

I love her because she was founded and designed to be exceptional. The Declaration of Independence, a brilliant and revolutionary document written largely and substantially by my favorite Founding Father, Thomas Jefferson, articulates the reasons why the founding American colonies decided to separate from Great Britain but most importantly, the values and principles that would come to define them.

Paragraphs one and two articulate those values and principles. They read:

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.

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.–Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.”

These principles were considered “revolutionary” back in the 17thand 18th centuries. Back in those days, countries were ruled by kings and blue-bloods. They believed that there was a divine right for certain individuals to rule. America would be different. They would be the source of government power, through elected officials, and government would be tasked to protect and secure their individual rights and liberty.

The Declaration didn’t just proclaim to a candid world our reasons to separate from Great Britain but rather, it continues to influence our country to this very day. What many people don’t know is that the Declaration influenced the very drafting of the Constitution in 1787 when the States decided to scrap the Articles of Confederation in favor of a totally new constitution and new form of government. It also inspired the abolitionist movement and the ultimate prohibition of slavery in this country, it inspired Martin Luther King Jr. to lead his people to fight against racial discrimination and fight for a federal civil rights law, and most recently, it offers encouragement and direction to the modern conservative originalist movement [including the Tea Party movement starting back in 2009 and continuing, Turning Point USA, Judicial Watch, the Heritage Foundation, Freedom Watch – with its motto “Government fails, freedom works”, Citizens United, The American Conservative Union (ACU), American Family Association (AFA), Americans for Prosperity (AFP), The Conservative Caucus, Family Research Council (FRC), and Eagle Forum].

As mentioned above, the Declaration informed our US Constitution and continues to do so.

Most Americans don’t actually know the nature of the Constitution. Many regard it as nothing more than a founding document and those on the left regard it as something even more inconsequential – as an outdated founding document. The truth is that it is so much more. In fact it is critical to our constitutional republic. It created the federal government, assigned it a series of enumerated powers, sets limits and boundaries on the branches of government, provides for a series of checks and balances to keep the government in check (with the antagonism of the States being the most powerful of those checks and balances), and provides a legal mechanism for changing or amending it (Article V). It establishes the “Supreme Law of the Land” (Article VI) which therefore forms the basis for our Rule of Law.

Our US Constitution, like all constitutions, is a social compact, drafted and ratified by the people of the several states, to protect We the People from an ambitious and oppressive government. The Constitution is intended for We the People; it is for the protection of our Liberty. People need to view it that way in order to understand why it is so important and critical and why activists like myself fight so hard to defend it, to chastise elected officials for violating it, and to explain it to others. Education is the best way to keep we Americans informed and help them be responsible voters.

The fact is that we almost didn’t get that Constitution in 1787. The discussions and debates among the delegates devolved into headstrong arguments and stubbornness. When it seemed that there would be no overcoming this and that the Convention had come to an impasse, the eldest delegate to the Convention, Pennsylvania’s Benjamin Franklin called upon all the delegates to take a moment and appeal to God to imbue them with rationality, purpose, and vision and to remind them of why they had met in Philadelphia in the first place. This is what he said on June 28, 1787, just one month into the convention:

We shall be divided by our little partial local interests; our projects will be confounded; and we ourselves shall become a reproach and by-word down to future ages…I therefore beg leave to move — that henceforth prayers imploring the assistance of Heaven, and its blessings on our deliberations, be held in this Assembly every morning before we proceed to business, and that one or more of the clergy of this city be requested to officiate in that service.”   

Granted, the Constitution was not perfect when the delegates to the Philadelphia Convention (Constitutional Convention) completed their draft and signed it (on September 20, 1787). In fact, several key delegates found the final draft to be unsuitable and a danger both to state sovereignty and to individual liberty and refused to sign it. They demanded that a Bill of Rights be included and certain key states, including Virginia, North Carolina, New York, Massachusetts, and North Carolina, agreed (and made note of that condition in their ratification conventions).

Alexander Hamilton, in his Federalist Papers essay No. 1, understood how difficult it would likely be for the Constitution to be ratified by all the independent States. He explained:

“After an unequivocal experience of the inefficiency of the subsisting federal government, you are called upon to deliberate on a new Constitution for the United States of America. The subject speaks its own importance; comprehending in its consequences nothing less than the existence of the UNION, the safety and welfare of the parts of which it is composed, the fate of an empire in many respects the most interesting in the world. It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force. If there be any truth in the remark, the crisis at which we are arrived may with propriety be regarded as the era in which that decision is to be made; and a wrong election of the part we shall act may, in this view, deserve to be considered as the general misfortune of mankind. This idea will add the inducements of philanthropy to those of patriotism, to heighten the solicitude which all considerate and good men must feel for the event. Happy will it be if our choice should be directed by a judicious estimate of our true interests, unperplexed and unbiased by considerations not connected with the public good. But this is a thing more ardently to be wished than seriously to be expected. The plan offered to our deliberations affects too many particular interests, innovates upon too many local institutions, not to involve in its discussion a variety of objects foreign to its merits, and of views, passions and prejudices little favorable to the discovery of truth.

Among the most formidable of the obstacles which the new Constitution will have to encounter may readily be distinguished the obvious interest of a certain class of men in every State to resist all changes which may hazard a diminution of the power, emolument, and consequence of the offices they hold under the State establishments; and the perverted ambition of another class of men, who will either hope to aggrandize themselves by the confusions of their country, or will flatter themselves with fairer prospects of elevation from the subdivision of the empire into several partial confederacies than from its union under one government.

A torrent of angry and malignant passions will be let loose. To judge from the conduct of the opposite parties, we shall be led to conclude that they will mutually hope to evince the justness of their opinions, and to increase the number of their converts by the loudness of their declamations and the bitterness of their invectives. An enlightened zeal for the energy and efficiency of government will be stigmatized as the offspring of a temper fond of despotic power and hostile to the principles of liberty. An over-scrupulous jealousy of danger to the rights of the people, which is more commonly the fault of the head than of the heart, will be represented as mere pretense and artifice, the stale bait for popularity at the expense of the public good. It will be forgotten, on the one hand, that jealousy is the usual concomitant of love, and that the noble enthusiasm of liberty is apt to be infected with a spirit of narrow and illiberal distrust. On the other hand, it will be equally forgotten that the vigor of government is essential to the security of liberty; that, in the contemplation of a sound and well-informed judgment, their interest can never be separated; and that a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidden appearance of zeal for the firmness and efficiency of government. History will teach us that the former has been found a much more certain road to the introduction of despotism than the latter, and that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants.

After having given it an attentive consideration, I am clearly of opinion it is your interest to adopt it. I am convinced that this is the safest course for your liberty, your dignity, and your happiness. I affect not reserves which I do not feel. I will not amuse you with an appearance of deliberation when I have decided. I frankly acknowledge to you my convictions, and I will freely lay before you the reasons on which they are founded. The consciousness of good intentions disdains ambiguity. I shall not, however, multiply professions on this head. My motives must remain in the depository of my own breast. My arguments will be open to all and may be judged of by all. They shall at least be offered in a spirit which will not disgrace the cause of truth.

I propose, in a series of papers, to discuss the following interesting particulars: The utility of the Union to your political prosperity, the insufficiency of the present Confederation to preserve that Union, the necessity of a government at least equally energetic with the one proposed by this new Constitution, the conformity of the proposed Constitution to the true principles of republican government, its analogy to your own state constitutions, and lastly, the additional security which its adoption will afford to the preservation of that species of government, to Liberty, and to property.

It may perhaps be thought superfluous to offer arguments to prove the utility of the UNION, a point, no doubt, deeply engraved on the hearts of the great body of the people in every State, and one, which it may be imagined, has no adversaries. But the fact is, that we already hear it whispered in the private circles of those who oppose the new Constitution, that the thirteen States are of too great extent for any general system, and that we must of necessity resort to separate confederacies of distinct portions of the whole.1 This doctrine will, in all probability, be gradually propagated, till it has votaries enough to countenance an open avowal of it. For nothing can be more evident, to those who are able to take an enlarged view of the subject, than the alternative of an adoption of the new Constitution or a dismemberment of the Union. It will therefore be of use to begin by examining the advantages of that Union, the certain evils, and the probable dangers, to which every State will be exposed from its dissolution. This shall accordingly constitute the subject of my next address.”

The strongest argument against the ratification and adoption of the new constitution by certain key delegates to the Convention and then by certain key States during the ratification period was its lack of a Bill of Rights. They argued that the new constitution was defective in its failure to protect individual freedom and liberty because it lacked such a bill. They pointed to England, which adopted a Bill of Rights in 1689 (and which the colonists regularly pointed to in defense of their rights – their “rights as English subjects”).

A Bill of Rights was finally added when the first US Congress convened, thanks to James Madison, who kept his promise to Virginia and introduced a series of amendments (proposed in large part by the individual states themselves) on June 8, 1789 and to Thomas Jefferson for emphasizing to his good friend that “A bill of rights is what the people are entitled to against every government on earth and what no just government should refuse, or rest on inference.” The Bill of Rights was hugely popular and overwhelmingly supported, and it officially became part of the US Constitution in December 1789.

The Declaration was “submitted to a candid world” in July 1776 as the American Revolution was just getting started. The American colonies/states fought successfully and against all odds when British General Charles Cornwallis surrendered to General George Washington (who had help from French General Gilbert du Motier, Marquis de Lafayette, and French Army troops) at Yorktown (VA) on October 19, 1781. The treaty of Paris, signed by American delegates Benjamin Franklin, John Adams, and a representative of the King of Great Britain, King George III, on September 3, 1783, acknowledged the independence and sovereignty of all the American states.

Article I reads: “His Britannic Majesty acknowledges the said United States, New-Hampshire, Massachusetts Bay, Rhode-Island & Providence Plantations, Connecticut, New-York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina & Georgia, to be free sovereign & Independent States; that he Treats with them as such, and for himself his Heirs & Successors relinquishes all Claims to the Government Propriety and Territorial Rights of the same & every Part thereof.”

With respect to the Declaration of Independence, America was, and continues to be, founded on its “revolutionary” principles. She appeals to a higher standard than other countries. In America, we believe that all governments derive their just powers from the consent of the governed. All nations, all people, look to our country as a beacon of light and right. It’s this principle, along with our commitment to individual Liberty that makes America a truly unique and legitimate nation.

I love America for her commitment to the Declaration and because it defines us as Americans. I know it defines me. I sing its praises whenever I speak to my Tea Party group and I sing its praises, and reference it, whenever possible when I write.

The Declaration is masterful and revolutionary because it explains the concept of Individual Sovereignty, which is the concept upon which our nation and our government system was based, and explains the proper purposes of government.  Individual Sovereignty is the government philosophy that asserts that true sovereignty belongs to the people, who in turn delegate it to their governments. Since government belongs inherently to the people, it must act in their best interests. And since government belongs to the people, whenever they believe it to be destructive of its purposes (as the Declaration explains), they have the right to “throw off” that government and resume all sovereign power over themselves until a new government is established. If governments abuse the authority entrusted to them and citizens have no opportunity to correct such abuses (which they do by calling for an Article V Convention or pressuring their States to interpose and nullify abusive and unconstitutional federal laws and actions or in the last resort, to revolt or to secede), outside interference is justified. By specifying that sovereignty is based on the people, the international community can penetrate nation-states’ borders to protect the rights of citizens. Perhaps that is why it is important to maintain friendly relations with like-minded nations.

Related to the concept of “individual sovereignty” is the understanding that a person has the right of conscience – the right to think and believe as he or she chooses. A person has a functioning mind and the actual or potential ability to make choices based on reason and awareness, in accordance with his or her belief set, which may or may not be justified by religious teachings. Young children have such minds and are therefore also sovereign, but the ability to use reason is something that develops as the child’s brain matures, and therefore the parents have a responsibility to exercise some of the sovereignty rights on behalf of their children. This “parental obligation” creates a moral obligation on the part of parents to provide wisdom and judgement, as well as education oversight and material needs for their children. Upon the age of maturity, the child becomes a fully sovereign human being and is emancipated from his or her parents. Individual sovereignty also explains why we as Americans have the rights to life, to speak freely, to exercise our religious beliefs, to assemble, to protest, to keep and bear firearms for self-protection, and to be safe and secure in our homes and to have our privacy respected. These are inalienable rights, which means they attach to us by way of our very humanity.

Also related to the concept of individual sovereignty is the notion that Americans have the right to the fruits of their own labor and should be minimally taxed. The fundamental right to acquire, possess, and sell property is the reason Jefferson included the term “and the pursuit of happiness” as one of the inalienable rights included in the Declaration of Independence. The fundamental right to acquire, possess, and sell property is the backbone of opportunity; it incentivizes us and gives us a valid reason to get a good education, to decide on a good and prosperous career, to save our money, to invest, to seize opportunities, and to invest in starting a business. It’s the most practical means to protect one’s assets and the most practical means to pursue happiness. This right, along with the free enterprise system (articulated by Adam Smith in “Wealth of Nations”) that stems from it, is the source of individual prosperity, national prosperity, and the foundation of economic liberty.

In short, our country was founded on the revolutionary notion of Individual Liberty. I love that about America. I am free. Every day I can exercise my freedoms without government oppression or suppression (as long as I am not around members or organizations on the extreme left, although I’m confident I can hold my own).

“Liberty” is defined as the state of being free to exercise one’s inalienable and civil rights and to be free from unreasonable government control. Liberty means a person can freely exist within society from oppressive restrictions imposed by authority (government) on one’s way of life, behavior, or political views.

I doubt that those rounded up after the January 6 so-called “insurrection” believe this is a free country. I doubt Donald Trump believes this is a free country after what the Democrats in Congress did to him while he was duly elected to serve as president. I doubt that all those (politically targeted) who have been needlessly and unfairly harassed, defamed, and financially drained by the government believe this is a free country. I realize that many Americans doubt that we are still a “free people.” They doubt that this country can still be characterized as “the land of the free” (even though we are defended by “the brave”).

But we continue to look to the Declaration of Independence as the defining articulation of what it means to be an American and to live in America.

Besides being our initial founding document, the Declaration of Independence guided, and continues to guide, our understanding of the US Constitution. It provides the foundation, the foundational principles, and the intention of our Founding generation in drafting the Constitution and creating the government it did. It continues to be our nation’s moral compass. That is, except when certain factions try to divide our nation’s people and communities according to race.

America is the product of religion and world history, namely western civilization (the Bible, Rome’s Cicero, Tacitus, Livy, Plutarch, etc), the influence of English and French Enlightenment philosophers (such as John Locke, Thomas Hobbes, Baron de Montesquieu, Frederic Bastiat, Adam Smith, Immanuel Kant), and the history, in particular, of Great Britain, our mother/parent country. The ol’ saying that “we stand on the shoulders of others” is certainly true when it comes to this wonderful country.

Despite what those on the left may say, this country has been shaped by Judeo-Christian beliefs and culture. John Winthrop, who sailed across the Atlantic on board the ship Arbella in 1630, delivered the following sermon just before he and his fellow Puritans arrived in New England (where they settled the Massachusetts Bay Colony):

“We are entered into covenant with Him [God] for this work. We have taken out a commission. The Lord hath given us leave to draw our own articles. We have professed to enterprise these and those accounts, upon these and those ends. We have hereupon besought Him of favor and blessing. Now if the Lord shall please to hear us, and bring us in peace to the place we desire, then hath He ratified this covenant and sealed our commission, and will expect a strict performance of the articles contained in it; but if we shall neglect the observation of these articles which are the ends we have propounded, and, dissembling with our God, shall fall to embrace this present world and prosecute our carnal intentions, seeking great things for ourselves and our posterity, the Lord will surely break out in wrath against us, and be revenged of such a people, and make us know the price of the breach of such a covenant……….

To provide for our posterity, is to follow the counsel of Micah, to do justly, to love mercy, to walk humbly with our God. For this end, we must be knit together, in this work, as one man. We must entertain each other in brotherly affection. We must be willing to abridge ourselves of our superfluities, for the supply of others’ necessities. We must uphold a familiar commerce together in all meekness, gentleness, patience and liberality. We must delight in each other; make others’ conditions our own; rejoice together, mourn together, labor and suffer together, always having before our eyes our commission and community in the work, as members of the same body. So shall we keep the unity of the spirit in the bond of peace. The Lord will be our God, and delight to dwell among us, as His own people, and will command a blessing upon us in all our ways, so that we shall see much more of His wisdom, power, goodness and truth, than formerly we have been acquainted with. We shall find that the God of Israel is among us, when ten of us shall be able to resist a thousand of our enemies; when He shall make us a praise and glory… For we must consider that we shall be as a city upon a hill. The eyes of all people are upon us. So that if we shall deal falsely with our God in this work we have undertaken, and so cause Him to withdraw His present help from us, we shall be made a story and a by-word through the world.”

As mentioned earlier, it was a call to God and a call for daily prayer at the convention center in Philadelphia in June 1787 by Ben Franklin that enabled the delegates to get beyond their petty differences and push forward and eventually come to a consensus regarding a new Constitution and a new form of government.

Furthermore, in his Farewell Address, President George Washington said: Liberty is “the palladium of your political safety and prosperity….  The name of American, which belongs to you, in your national capacity, must always exalt the just pride of patriotism more than any appellation derived from local discriminations. With slight shades of difference, you have the same religion, manners, habits, and political principles. You have in a common cause fought and triumphed together. The independence and liberty you possess are the work of joint councils and joint efforts—of common dangers, sufferings, and successes.

      The basis of our political systems is the right of the people to make and to alter their constitutions of government. But the Constitution which at any time exists, until changed by an explicit and authentic act of the

whole people, is sacredly obligatory upon all. The very idea of the power and the right of the people to establish government presupposes the duty of every individual to obey the established government. 

      A government of as much vigor as is consistent with the perfect security of liberty is indispensable. Liberty itself will find in such a government, with powers properly distributed and adjusted, its surest guardian. The alternate domination of one faction over another, sharpened by the spirit of revenge natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism. But this leads at length to a more formal and permanent despotism. The disorders and miseries which result gradually incline the minds of men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation on the ruins of public liberty.

      The necessity of reciprocal checks in the exercise of political power, by dividing and distributing it into different depositories and constituting each the guardian of the public weal against invasions by the others, has been evinced by experiments ancient and modern, some of them in our country and under our own eyes. To preserve them must be as necessary as to institute them. 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. The precedent must always greatly overbalance in permanent evil any partial or transient benefit which the use can at any time yield.

        Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism who should labor to subvert these great pillars of human happiness, these firmest props of the duties of men and citizens. The mere politician, equally with the pious man, ought to respect and to cherish them. A volume could not trace all their connections with private and public felicity. Let it simply be asked where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths, which are the instruments of investigation in courts of justice? And let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle…..”

John Adams famously explained in his letter to the Massachusetts militia, on October 11, 1798: “Because We have no Government armed with Power capable of contending with human Passions unbridled by morality and religion, avarice, ambition, revenge or gallantry would break the strongest cords of our Constitution as a whale goes through a net. Our Constitution was made only for a moral and religious People. It is wholly inadequate to the government of any other.”

In fact, it is religion and morality (virtue) that is necessary to support and sustain our constitutional republic. If we expect to have a “limited government” as the originally-intentioned Constitution created, We the People must be expected to be able to govern ourselves appropriately, and those guidelines come from God’s law and from the teachings of Jesus. It is from the Judeo-Christian tenets and teachings that we can clearly and assuredly know the difference between right and wrong and therefore guide our conduct.  If a free people are to govern themselves politically, they must first be able to govern themselves morally and effectively.

Our nation’s appreciation and adherence to such tenets and teachings continued up until 1962. In that year, the US Supreme Court decided the landmark case of Engel v. Vitale, which declared that school-sponsored prayer is unconstitutional, as being a violation of the Establishment Clause of the First Amendment. The following year, the Supreme Court handed down an equally disastrous ruling. In Abington Township (PA) v. Schempp (1963), the Court declared that Bible readings and the recitation of the Lord’s prayer also violate the Establishment Clause of the First Amendment.

It was Madalyn Murray O’Hair, an avowed hedonist and atheist activist, who filed numerous lawsuits challenging various laws and government practices based on the issue of ‘separation of Church and State,’ with one such case eventually making its way to the Supreme Court (consolidating into the Abington v. Schempp case). To understand just how much this woman was despised and how dangerous Americans believed her to be to our critical national institutions, LIFE magazine, in 1964, did a cover story on her and referred to her as “the most hated woman in America. [As a side note, in 1995, O’Hair, her son, and her granddaughter, went missing in their home state of Texas. Rumor has it that she was still so utterly despised that law enforcement didn’t even bother to look for her for over a year].

1962-1963 – that’s when public schools began to fall apart, that’s when society began to degenerate, that’s when social morality began to become a thing of the past, that’s when violence began to increase, and that’s when the incidence of school shootings began to rise (sharply with each succeeding decade).

I remember attending high school from 1974-78 and we still were able to start our days in home room by enjoying a moment of silence in order to pray (or to just contemplate). When I was doing my student teaching in 2012 in the public school system, students began their day watching President Obama on the televisions that were installed in each classroom.  Quite a difference, yes?

If there is any confusion or denial of the fact that our country was founded on Judeo-Christian values, one just needs to look at the first and second paragraphs of the Declaration of Independence. Our American Founders staked this country on “self-evident truths” that stem from “the laws of Nature and Nature’s God. They did so in order to justify the dedication of America to individual liberty. That is, that liberty comes from our humanity and not from government. If the Declaration is to be believed worldwide, then America’s “self-evident truths” are not just unique to our country and to Americans, but they apply to all men and women everywhere. They are as true today as they were in 1776. This universal principle of Liberty and the defense of it is what inspires men and women to enlist in our armed services and to spread and defend it all across the planet. The oath that our enlisted men and women take reads: “I, ____________________, 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… “

Americans still believe in these ideals. They are still willing to fight for them, whether as enlisted men and women or as citizen-activists.

Our founding values and founding principles, our founding documents, our nation’s devotion to individual Liberty, and our foundations in, and reliance on, religion are just some reasons I love America.

Our government, created and vested with enumerated powers by the US Constitution, was initially unique and self-containing. But we all know that government has been dishonest and scheming over our 230-plus years for the sole purpose of enlarging and consolidating its powers and for taking greater and greater control over our lives, our property, and our livelihoods. If you have any doubt about this inglorious history, try comparing the “facts submitted (by the 13 colonies/states) to a candid world” in the Declaration to support their claim that Great Britain had established “an absolute tyranny” over them to the actions of our current federal government. [For additional arguments to this point, read my article “A RE-DECLARATION OF INDEPENDENCE,” written and posted on my blogsite January 22, 2021 – https://forloveofgodandcountry.com/2021/01/23/a-re-declaration-of-independence/ ]

I love this country because I love its people. They are among the most hard-working, church-going, God-fearing, industrious, affluent, and generous in the world.

Every nation has something to build a spirit of nationalism, to derive meaning and purpose and to stir in its people a sense of patriotism. Examples include a specific ethnic character, a shared history, a shared purpose for existing, a common religion. In the case of America, our sense of patriotism derives from our glorious history (although spotted and stained at times), our love and appreciation of the Declaration of Independence, our shared love and pursuit of liberty, and our appreciation of the US Constitution. In short, our patriotism and our love of country stems from an IDEAL. “We hold these truths 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…”

English writer G.K. Chesterton famously observed that “America is the only nation in the world that is founded on a creed.” (which was/is set out brilliantly and clearly in the Declaration of Independence).

The country that I love holds a great promise for all, no matter where they may be, that all men everywhere are endowed at creation – at birth – with an inalienable right to liberty. In fact, it seems that America’s role in the world is to preserve and to spread, by example and by action, that “sacred fire of Liberty.”  I am encouraged by this reality. I am also encouraged at the groundswell of patriotism and the groundswell of activism and protest to defend our Constitution, our precious republic, and our founding values, principles, and institutions. It gives me hope. It is because of our foundational principles and values, not despite them, that America is great in my eyes.

America, for all its faults and its unglorified history, is still the land that I love. I will always love her, I will always praise her, and will always fight for her.

Diane Rufino


References

Matthew Spalding, “Why is America Exceptional?”, The Heritage Foundation.  Referenced at:  https://www.heritage.org/american-founders/report/why-america-exceptional

The Declaration of Independence – https://www.archives.gov/founding-docs/declaration-transcript

The Federalist No. 1 (Alexander Hamilton) – https://avalon.law.yale.edu/18th_century/fed01.asp

“John Winthrop’s Dream of a City on a Hill, 1630,” The American Yawp Reader.  Referenced at:  https://www.americanyawp.com/reader/colliding-cultures/john-winthrop-dreams-of-a-city-on-a-hill-1630/

Diane Rufino, A RE-DECLARATION OF INDEPENDENCE,” my blogsite (ForLoveofGodandCountry), January 22, 2021.  Referenced at: https://forloveofgodandcountry.com/2021/01/23/a-re-declaration-of-independence/ ]

Treaty of Paris (1783) – https://founders.archives.gov/documents/Franklin/01-40-02-0356

George Washington’s Farewell Address – https://www.senate.gov/artandhistory/history/resources/pdf/Washingtons_Farewell_Address.pdf

John Adams’ letter to the Massachusetts militia, October 11, 1789 –  https://founders.archives.gov/documents/Adams/99-02-02-3102   and  https://oll.libertyfund.org/quote/john-adams-religion-constitution

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SUPREME COURT OVERTURNS ROE v. WADE: Dobbs v. Jackson Women’s Health Organization (June 24, 2022)

by Diane Rufino, June 25, 2022

Make no mistake, abortion on-demand is not a right guaranteed by the Constitution. No serious scholar, including one disposed to agree with the Court’s result (referring to Roe v. Wade) has argued that the framers of the Constitution intended to create such a right…But the Court’s decision has by no means settled the debate. Instead Roe v. Wade has become a continuing prod to the conscience of the nation.”   — Ronald Reagan, from “Abortion and the Conscience of the Nation”

As we all know, an abortion is a procedure to end a pregnancy. It uses medicine or surgery to remove the embryo or fetus and placenta from the uterus. The question of whether there is a constitutional right for women to abort their pregnancy is perhaps the most controversial issue facing our country right now. It is a moral and religious issue, and one that offends, or should offend, one’s conscience. As the United States has enjoyed broad abortion rights since Roe v. Wade was handed down by the US Supreme Court in 1973, the majority of countries around the world have greater limitations on that ‘right.’

In fact, The United States is one of only seven nations in the world that permits nontherapeutic or elective abortion-on-demand after the twentieth week of gestation. Seventy-five percent (75%) of all nations do not permit abortion after twelve weeks’ gestation, except (in most instances) to save the life of the mother or to preserve her health.

Prior to the Roe v. Wade opinion handed down in 1973, the issue of abortion was a state matter, as the opinion actually and correctly pointed out. Abortion is one of the issues reserved to the sovereign states by the Tenth Amendment, which is essentially a restatement of the doctrine of federalism, which is the system of government established by our Founding Fathers. There is no mention in the Constitution or Bill of Rights, specifically, of an express right to an abortion. The ruling rightfully sends the issue of abortion back to the individual states, where it belongs. Roe was, after all, a usurpation of state authority.

The reality is that every pregnancy involves 2 distinct human lives. The mother’s life, as stressed in Roe, is most important and therefore, if the pregnancy poses a health risk, is inconvenient and causes undue stress, will cause a financial burden, etc, then the woman can exercise her “right” to an abortion and terminate the unique life growing inside her. The second life, the life of the unborn, a blessed creation, is minimalized and for all intents and purposes, ignored. A life not wanted is a life not protected or respected. A life unwanted is a life that can be sacrificed and terminated. The very sad thing is that while the pregnant woman may not want the baby she is carrying, there are so many others who would cherish the ability to love that child and offer it a stable home.

There is a clear ideological divide in our country over the issue of abortion and its rightful place. On the one hand, feminists and feminazis believe they have complete control over their body and whatever is inside it and they alone have the right to decide what to do. The Supreme Court gave them “a constitutional right to an abortion” with Roe and they refuse to want to give that gift up. We see how they are behaving.  The motivation for the Roe case was to give woman the right to an abortion in order to control her body and allow her to achieve full equality with males in employment.

On the other hand, there is a huge majority who believes that abortion offends the conscience of our Christian nation. If we expect our Divine Creator to guide and protect us, we must believe as He believes and as Jesus has taught us.

As Justice Samuel Alito stated in his opinion: “Americans continue to hold passionate and widely divergent views on abortion, and state legislatures have acted accordingly. Some have recently enacted laws allowing abortion, with few restrictions, at all stages of pregnancy. Others have tightly restricted abortion beginning well before viability. And in this case (Dobbs), 26 States have expressly asked this Court to overrule Roe and Casey and allow the States to regulate or prohibit pre-viability abortions.”


The reality is that the Dobbs v. Jackson Women’s Health Organization ruling will not take away a woman’s ability to get an abortion. In most cases, the ability will just be limited to a certain time frame. Liberal (blue) states will no doubt continue enacting laws to recognize and permit abortions, and I would imagine that many will even enlarge that right. Conservative (red) states will most likely either prohibit abortions (highly unlikely) or severely restrict them (like Mississippi has done with its Gestational Age Act).

In the end, liberal pro-abortionists will not have suffered, nor will suffer, as they are so vocally and demonstratively claiming.

I’m not taking the position that all abortion should be prohibited. I believe that a woman, if she suspects she might be pregnant, should be able to: (1) obtain the “Morning-After” pill, or (2) have an abortion up until the fetus is nearly fully-formed and can feel pain. Otherwise, an abortion will not only kill the developing child, but will also torture it.

BACKGROUND

The abortion law at the center of the Dobbs case is Gestational Age Act adopted by the state of Mississippi in 2018. It was enacted to limit abortions to a time up to the fifteenth (15th) week of gestation.


The bill reads:

Medical and other authorities now know more about human prenatal development than ever before including that:

1. Between five (5) and six (6) weeks’ gestation, an unborn human being’s heart begins beating.

2. An unborn human being begins to move about in the womb at approximately eight (8) weeks’ gestation.

3. At nine (9) weeks’ gestation, all basic physiological functions are present. Teeth and eyes are present, as well as external genitalia.

4. An unborn human being’s vital organs begin to function at ten (10) weeks’ gestation. Hair, fingernails, and toenails also begin to form.

5. At eleven (11) weeks’ gestation, an unborn human being’s diaphragm is developing, and he or she may even hiccup. He or she is beginning to move about freely in the womb.

6. At twelve (12) weeks’ gestation, an unborn human being can open and close his or her fingers, starts to make sucking motions, and senses stimulation from the world outside the womb. Importantly, he or she has taken on “the human form” in all relevant aspects. Gonzales v. Carhart, 550 U.S. 124, 160 (2007).

7. The Supreme Court has long recognized that the State of Mississippi has an “important and legitimate interest in protecting the potentiality of human life,” Roe v. Wade, 410 U.S. 113, 162 (1973), and specifically that “the state has an interest in protecting the life of the unborn.” Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 873 (1992).

8. The majority of abortion procedures performed after fifteen (15) weeks’ gestation are dilation and evacuation procedures which involve the use of surgical instruments to crush and tear the unborn child apart before removing the pieces of the dead child from the womb. The Legislature finds that the intentional commitment of such acts for nontherapeutic or elective reasons is a barbaric practice, dangerous for the maternal patient, and demeaning to the medical profession.

9. Most obstetricians and gynecologists practicing in the State of Mississippi do not offer or perform nontherapeutic or elective abortions. Even fewer offer or perform the dilation and evacuation abortion procedure even though it is within their scope of practice.

(ii) Abortion carries significant physical and psychological risks to the maternal patient, and these physical and psychological risks increase with gestational age. Specifically, in abortions performed after eight (8) weeks’ gestation, the relative physical and psychological risks escalate exponentially as gestational age increases. L. Bartlett et al., Risk factors for legal induced abortion mortality in the United States, Obstetrics and Gynecology 103(4):729 (2004).

(iii) Importantly, as the second trimester progresses, in the vast majority of uncomplicated pregnancies, the maternal health risks of undergoing an abortion are greater than the risks of carrying a pregnancy to term.

(iv) Medical complications from dilation and evacuation abortions include, but are not limited to: pelvic infection; incomplete abortions (retained tissue); blood clots; heavy bleeding or hemorrhage; laceration, tear, or other injury to the cervix; puncture, laceration, tear, or other injury to the uterus; injury to the bowel or bladder; depression; anxiety; substance abuse; and other emotional or psychological problems. Further, in abortions performed after fifteen (15) weeks’ gestation, there is a higher risk of requiring a hysterectomy, other reparative surgery, or blood transfusion.

(v) The State of Mississippi also has “legitimate interests from the outset of pregnancy in protecting the health of women.” [Planned Parenthood of Southeastern Pennsylvania v. Casey] as the “medical, emotional, and psychological consequences of abortion are serious and can be lasting …”

(c) Based on the findings in paragraph (a) of this subsection, it is the intent of the Legislature, through this section and any regulations and policies promulgated hereunder, to restrict the practice of nontherapeutic or elective abortion to the period up to the fifteenth week of gestation.

Mississippi’s Gestational Age Act provides that ‘except in a medical emergency or in the case of a severe fetal abnormality, a person shall not intentionally or knowingly perform . . . or induce an abortion of an unborn human being if the probable gestational age of the unborn human being has been determined to be greater than fifteen (15) weeks.”

Mississippi Governor Phil Bryant signed the bill into law, commenting publicly that he was “committed to making Mississippi the safest place in America for an unborn child, and this bill will help us achieve that goal.” He added: “We’ll probably be sued here in about a half hour, and that’ll be fine with me. It is worth fighting over.” 

As predicted, within a day of the Gestational Age Act’s passage, Mississippi’s only state-run abortion clinic, Jackson Women’s Health Organization (Jackson Women’s Health Center), and one of its doctors, Sacheen Carr-Ellis, sued state Health Officer Dr. Thomas E. Dobbs and Kenneth Cleveland, executive director of the Mississippi State Board of Medical Licensure, in federal district court to challenge the Act’s constitutionality of the law. They argued that the court should adhere to its longstanding principle of stare decisis (“let the ruling stand”) and continue to recognize the constitutional right to abortion. Petitioner Dobbs in defending the law, argued that the Court should overturn Roe v. Wade (1973) for its incorrect assertion that there is a constitutional right to an abortion or alternatively, should reject viability as an unworkable and imprecise measuring tool. In short, Dobbs asked the court to overturn both Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey (1992). In response, Respondent Jackson Women’s Health Organization (Jackson Women’s Health Center),

The District Court granted summary judgment and permanently enjoined enforcement of the Act, reasoning that Mississippi’s 15-week restriction on abortion would likely be found violative of a woman’s right to terminate a pregnancy prior to viability. The Fifth Circuit thereafter affirmed.

Those defending the Gestational Age Act (ie, petitioners) have taken the position that both Roe and Casey were wrongly decided and that the Act is constitutional because it satisfies rational-basis review (the ordinary legal standard of review when a non-constitutional right is at stake). The Supreme Court agreed with them.

In 1973, in his dissenting opinion in Roe, Justice Byron White characterized the decision of the Court as an “exercise of raw judicial power” that has sparked a national controversy that has embittered our political culture for a half century.

OVERVIEW OF THE RULING:

In a 6-3 opinion, written by Justice Samuel Alito, the Supreme Court held that Constitution, in fact, does NOT confer a right to abortion. The Court concluded that Roe and Casey were both incorrectly decided and are now, by this opinion, overruled. What this opinion means is that the authority to regulate abortion is returned to the people of the individual states and their elected representatives – where it rightfully belongs.

The critical question is whether the Constitution, properly understood, confers a right to obtain an abortion. If it does, then Roe must be allowed to stand. But if not, then the Court is obligated to determine if a mistake had been made and the nature of that mistake.

Casey’s controlling opinion skipped over that question and reaffirmed Roe solely on the basis of stare decisis (which is a latin term which informs the federal courts that they must allow a former opinion to continue to stand). A proper application of stare decisis, however, requires an assessment of the strength of the grounds on which Roe was based. The Court therefore had to turn to the question that Roe addressed: Whether there is an articulated constitutional right to an abortion. And second, to the question that the Casey plurality did not consider: Whether the Fourteenth Amendment’s reference to ‘liberty’ protects a particular right.

In fact, the Constitution makes no express reference to a right to obtain an abortion, but several constitutional provisions had been offered (in Roe) as potential homes for an implicit constitutional right.

Roe held that the abortion right is part of a right to privacy that springs from the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. The Casey Court grounded its decision solely on the theory that the right to obtain an abortion is part of the ‘liberty’ protected by the Fourteenth Amendment’s Due Process Clause. Others have suggested that support can be found in the Fourteenth Amendment’s Equal Protection Clause, but that theory is squarely foreclosed by the Court’s precedents, which establish that a State’s regulation of abortion is not a sex-based classification and is thus not subject to the heightened scrutiny that applies to such classifications. (Rather, regulations and prohibitions of abortion are governed by the same standard of review as other health and safety measures).  

The 2022 Supreme Court did not agree with the reasoning of Roe.

Next, the Court had to determine if the right to obtain an abortion is rooted in the Nation’s history and tradition and whether it is an essential component of ‘ordered liberty.’ The Court’s decisions have long held that the Due Process Clause protects two categories of substantive rights – those rights guaranteed by the first eight Amendments to the Constitution and those rights deemed fundamental that are not mentioned anywhere in the Constitution. In deciding whether a right falls into either of these categories, the question is whether the right is ‘deeply rooted in our history and tradition’ and whether it is essential to this Nation’s ‘scheme of ordered liberty.’

“In interpreting what is meant by ‘liberty,’ the Court must guard against the natural human tendency to confuse what the Fourteenth Amendment protects with the Court’s own ardent views about the liberty that Americans should enjoy. Note that the term liberty alone provides little guidance. For this reason, the Court has been reluctant to recognize rights that are not mentioned in the Constitution.

And so, again, the 2022 Court could not find that the right to abortion is not deeply rooted in the Nation’s history and tradition.

Guided by the history and tradition that map the essential components of the Nation’s concept of ordered liberty, the Court finds the Fourteenth Amendment clearly does not protect the right to an abortion. Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. No state constitutional provision had recognized such a right. Until a few years before Roe, no federal or state court had recognized such a right. Nor had any scholarly treatise. Indeed, abortion had long been a crime in every single State. At common law, abortion was criminal in at least some stages of pregnancy and was regarded as unlawful and could have very serious consequences at all stages. American law followed the common law until a wave of statutory restrictions in the 1800s expanded criminal liability for abortions. By the time the Fourteenth Amendment was adopted, three-quarters of the States had made abortion a crime at any stage of pregnancy. This consensus endured until the day Roe was decided.

“Roe either ignored or misstated this history, and Casey declined to reconsider Roe’s faulty historical analysis. Respondents’ argument that this history does not matter flies in the face of the standard the Court has applied in determining whether an asserted right that is nowhere mentioned in the Constitution is nevertheless protected by the Fourteenth Amendment. The Solicitor General repeats Roe’s claim that it is ‘doubtful . . . abortion was ever firmly established as a common-law crime even with respect to the destruction of a quick fetus,’ but the great common-law authorities—Bracton, Coke, Hale, and Blackstone—all wrote that a post-quickening abortion was a crime. Moreover, many authorities asserted that even a pre-quickening abortion was “unlawful” and that, as a result, an abortionist was guilty of murder if the woman died from the attempt. The Solicitor General suggests that history supports an abortion right because of the common law’s failure to criminalize abortion before quickening, but the insistence on quickening was not universal, and regardless, the fact that many States in the late 18th and early 19th century did not criminalize pre-quickening abortions does not mean that anyone thought the States lacked the authority to do so.”

Instead of seriously pressing the argument that the abortion right itself has deep roots, supporters of Roe and Casey contend that the abortion right is an integral part of a broader entrenched right. Roe termed this a right to privacy and Casey described it as the freedom to make “intimate and personal choices” that are “central to personal dignity and autonomy,” ordered liberty sets limits and defines the boundary between competing interests. Roe and Casey each struck a particular balance between the interests of a woman who wants an abortion and the interests of what they termed ‘potential life.’

But the people of the various States may evaluate those interests differently. The Nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated.

Finally, the Court had to consider whether a right to obtain an abortion is part of a broader entrenched right that is supported by other precedents.


Once again, the 2022 Court concluded that the right to obtain an abortion cannot be justified as a component of such a right. Attempts to justify abortion through appeals to a broader right to autonomy and to define one’s ‘concept of existence’ prove too much. Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like. What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledged: Abortion is different because it destroys what Roe termed ‘potential life’ and what the law challenged in this case calls an ‘unborn human being.’ None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion. Accordingly, those cases do not support the right to obtain an abortion, and the Court’s conclusion that the Constitution does not confer such a right does not undermine them in any way.

The doctrine of stare decisis does not counsel continued acceptance of Roe and Casey. Stare decisis plays an important role and protects the interests of those who have taken action in reliance on a past decision. It “reduces incentives for challenging settled precedents, saving parties and courts the expense of endless re-litigation.” It contributes to the actual and perceived integrity of the judicial process. And it restrains judicial hubris by respecting the judgment of those who grappled with important questions in the past.

But stare decisis is not an inexorable command and “is at its weakest when the Court interprets the Constitution,” Some of the Court’s most important constitutional decisions have overruled prior precedents. [See Brown v. Board of Education, (overruling the infamous “separate but equal doctrine” established in Plessy v. Ferguson]

The Court’s cases have identified factors that should be considered in deciding when a precedent should be overruled:  For one, the nature of the Court’s error: Like the infamous decision in Plessy v. Ferguson, Roe was also egregiously wrong and on a collision course with the Constitution from the day it was decided. Casey perpetuated its errors, calling both sides of the national controversy to resolve their debate, but in doing so, Casey necessarily declared a winning side. Those on the losing side (those who sought to advance the State’s interest in fetal life) could no longer seek to persuade their elected representatives to adopt policies consistent with their views. The Court short-circuited the democratic process by closing it to the large number of Americans who disagreed with Roe.

Second, the quality of the reasoning: Without any grounding in the constitutional text, history, or precedent, Roe imposed on the entire country a detailed set of rules for pregnancy divided into trimesters much like those that one might expect to find in a statute or regulation. Roe’s failure even to note the overwhelming consensus of state laws in effect in 1868 is striking, and what it said about the common law was simply wrong. Then, after surveying history, the opinion spent many paragraphs conducting the sort of fact-finding that might be undertaken by a legislative committee and did not explain why the sources on which it relied shed light on the meaning of the Constitution. As to precedent, citing a broad array of cases, the Court found support for a constitutional right of personal privacy. But Roe conflated the right to shield information from disclosure and the right to make and implement important personal decisions without governmental interference.

None of these decisions involved what is distinctive about abortion, which is its effect on what Roe termed “potential life.” When the Court summarized the basis for the scheme it imposed on the country, it asserted that its rules were “consistent with,” among other things, “the relative weights of the respective interests involved” and “the demands of the profound problems of the present day.” These are precisely the sort of considerations that legislative bodies often take into account when they draw lines that accommodate competing interests. The scheme Roe produced looked like legislation, and the Court provided the sort of explanation that might be expected from a legislative body.

An even more glaring deficiency was Roe’s failure to justify the critical distinction it drew between pre- and post-viability abortions. The arbitrary viability line, which Casey termed Roe’s central rule, has not found much support among philosophers and ethicists who have attempted to justify a right to abortion. The most obvious problem with any such argument is that viability has changed over time and is heavily dependent on factors – such as medical advances and the availability of quality medical care – that have nothing to do with the characteristics of a fetus. When Casey revisited Roe almost 20 years later, it reaffirmed Roe’s central holding, but pointedly refrained from endorsing most of its reasoning. The Court abandoned any reliance on a privacy right and instead grounded the abortion right entirely on the Fourteenth Amendment’s Due Process Clause. The controlling opinion criticized and rejected Roe’s trimester scheme and substituted a new and obscure “undue burden” test.

Casey, in short, either refused to reaffirm or rejected important aspects of Roe’s analysis, failed to remedy glaring deficiencies in Roe’s reasoning, endorsed what it termed Roe’s central holding while suggesting that a majority might not have thought it was correct, provided no new support for the abortion right other than Roe’s status as precedent, and imposed a new test with no firm grounding in constitutional text, history, or precedent.

Deciding whether a precedent should be overruled depends in part on whether the rule it imposes is workable—that is, whether it can be understood and applied in a consistent and predictable manner. Casey’s “undue burden” test has scored poorly on the workability scale. The Casey plurality tried to put meaning into the “undue burden” test by setting out three subsidiary rules, but these rules created their own problems. And the difficulty of applying Casey’s new rules surfaced in that very case. The experience of the Courts of Appeals provides further evidence that Casey’s “line between” permissible and unconstitutional restrictions “has proved to be impossible to draw with precision.” Unfortunately, Casey has generated a long list of Circuit conflicts. Continued adherence to Casey’s unworkable “undue burden” test would undermine, not advance, the “evenhanded, predictable, and consistent development of legal principles.”

In the final analysis, according to a majority of the Supreme Court, the cases of Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey needed to be overturned as being egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.”

As Alito wrote in his opinion, in which he was joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.: “We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely – the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.’ It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

EXCERPTS from the OPINION:

The following are excerpts and commentary from the opinion issued by Justice Samuel Alito, which apparently hadn’t changed much from the leaked version:

Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. No state constitutional provision had recognized such a right. Until a few years before Roe was handed down, no federal or state court had recognized such a right. Nor had any scholarly treatise of which we are aware. And although law review articles are not reticent about advocating new rights, the earliest article proposing a constitutional right to abortion that has come to our attention was published only a few years before Roe. Not only was there no support for such a constitutional right until shortly before Roe, but abortion had long been a crime in every single State. At common law, abortion was criminal in at least some stages of pregnancy and was regarded as unlawful and could have very serious consequences at all stages. American law followed the common law until a wave of statutory restrictions in the 1800s expanded criminal liability for abortions. By the time of the adoption of the Fourteenth Amendment, three-quarters of the States had made abortion a crime at any stage of pregnancy, and the remaining States would soon follow. Roe either ignored or misstated this history, and Casey declined to reconsider Roe’s faulty historical analysis. It is therefore important to set the record straight.

We begin with the common law, under which abortion was a crime at least after “quickening”—i.e., the first felt movement of the fetus in the womb, which usually occurs between the 16th and 18th week of pregnancy.

The Court’s opinion in Roe itself convincingly refutes the notion that the abortion liberty is deeply rooted in the history or tradition of our people. The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions. On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973. The Court in Roe could have said of abortion exactly what Glucksberg said of assisted suicide: “Attitudes toward [abortion] have changed since Bracton, but our laws have consistently condemned, and continue to prohibit, [that practice].”

The dissent is very candid that it cannot show that a constitutional right to abortion has any foundation, let alone one that is ‘deeply-rooted in this Nation’s history and tradition.’ We have held that the “established method of substantive-due-process analysis” requires that an unenumerated right be so ‘deeply-rooted’ before it can be recognized as a component of the “liberty” protected in the Due Process Clause. But despite the dissent’s professed fidelity to stare decisis, it fails to seriously engage with that important precedent—which it cannot possibly satisfy.

In this case, there are five factors that weigh strongly in favor of overruling Roe and Casey: (1) the nature of their error, (2) the quality of their reasoning, (3) the “workability” of the rules they imposed on the country, (4) their disruptive effect on other areas of the law, and (5) the absence of concrete reliance.

The Nature of the Court’s Error:  An erroneous interpretation of the Constitution is always important, but some are more damaging than others. The infamous decision in Plessy v. Ferguson, was one such decision. It betrayed our commitment to “equality before the law.” It was “egregiously wrong” on the day it was decided) and as the Solicitor General agreed at oral argument, it should have been overruled at the earliest opportunity. Roe was also egregiously wrong and deeply damaging. For reasons already explained, Roe’s constitutional analysis was far outside the bounds of any reasonable interpretation of the various constitutional provisions to which it vaguely pointed. Roe was on a collision course with the Constitution from the day it was decided, Casey perpetuated its errors, and those errors do not concern some arcane corner of the law of little importance to the American people. Rather, wielding nothing but “raw judicial power” (according to Justice White), the Court usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people. Casey described itself as calling both sides of the national controversy to resolve their debate, but in doing so, Casey necessarily declared a winning side. Those on the losing side—those who sought to advance the State’s interest in fetal life—could no longer seek to persuade their elected representatives to adopt policies consistent with their views. The Court short-circuited the democratic process by closing it to the large number of Americans who dissented in any respect from Roe. “Roe fanned into life an issue that has inflamed our national politics in general and has obscured with its smoke the selection of Justices to this Court in particular, ever since.” (opinion of Justice Scalia in Casey). Together, Roe and Casey represent an error that cannot be allowed to stand.

This Court has previously overruled decisions that wrongly removed an issue from the people and the democratic process. As Justice White later explained, “decisions that find in the Constitution principles or values that cannot fairly be read into that document usurp the people’s authority, for such decisions represent choices that the people have never made and that they cannot disavow through corrective legislation. For this reason, it is essential that this Court maintain the power to restore authority to its proper possessors by correcting constitutional decisions that, on reconsideration, are found to be mistaken.”

The weaknesses in Roe’s reasoning are well-known. Without any grounding in the constitutional text, history, or precedent, it imposed on the entire country a detailed set of rules much like those that one might expect to find in a statute or regulation. Dividing pregnancy into three trimesters, the Court imposed special rules for each. During the first trimester, the Court announced, “the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.” After that point, a State’s interest in regulating abortion for the sake of a woman’s health became compelling, and accordingly, a State could “regulate the abortion procedure in ways that are reasonably related to maternal health.” Ibid. Finally, in “the stage subsequent to viability,” which in 1973 roughly coincided with the beginning of the third trimester, the State’s interest in “the potentiality of human life” became compelling, and therefore a State could “regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” It relied on an erroneous historical narrative.  

This elaborate scheme was the Court’s own brainchild. Neither party advocated the trimester framework; nor did either party or any amicus argue that “viability” should mark the point at which the scope of the abortion right and a State’s regulatory authority should be substantially transformed.

If one takes the view that “personhood” begins when a certain attribute or combination of attributes is acquired, it is very hard to see why viability should mark the point where “personhood” begins. The most obvious problem with any such argument is that viability is heavily dependent on factors that have nothing to do with the characteristics of a fetus. One is the state of neonatal care at a particular point in time. Due to the development of new equipment and improved practices, the viability line has changed over the years. In the 19th century, a fetus may not have been viable until the 32d or 33d week of pregnancy or even later. When Roe was decided, viability was gauged at roughly 28 weeks.

Today, respondents draw the line at 23 or 24 weeks. So, according to Roe’s logic, States now have a compelling interest in protecting a fetus with a gestational age of, say, 26 weeks, but in 1973, States did not have an interest in protecting an identical fetus. How can that be? Viability also depends on the quality of the available medical facilities. Thus, a 24-week-old fetus may be viable if a woman gives birth in a city with hospitals that provide advanced care for very premature babies, but if the woman travels to a remote area far from any such hospital, the fetus may no longer be viable. On what ground could the constitutional status of a fetus depend on the pregnant woman’s location? And if viability is meant to mark a line having universal moral significance, can it be that a fetus that is viable in a big city in the United States has a privileged moral status not enjoyed by an identical fetus in a remote area of a poor country? In addition, as the Court once explained, viability is not really a hard-and-fast line. A physician determining a particular fetus’s odds of surviving outside the womb must consider a number of variables, including gestational age, fetal weight, a woman’s general health and nutrition, the quality of the available medical facilities, and other factors.

It is thus only with difficulty that a physician can estimate the probability of a particular fetus’s survival. And even if each fetus’s probability of survival could be ascertained with certainty, settling on a probability of survival that should count as ‘viability’ is another matter. Is a fetus viable with a 10 percent chance of survival? 25 percent? 50 percent? Can such a judgment be made by a State? And can a State specify a gestational age limit that applies in all cases? Or must these difficult questions be left entirely to the individual “attending physician on the particular facts of the case before him”? The viability line, which Casey termed Roe’s central rule, makes no sense, and it is telling that other countries almost uniformly eschew such a line.52 The Court thus asserted raw judicial power to impose, as a matter of constitutional law, a uniform viability rule that allowed the States less freedom to regulate abortion than the majority of western democracies enjoy.

Workability:  Our precedents counsel that another important consideration in deciding whether a precedent should be overruled is whether the rule it imposes is workable—that is, whether it can be understood and applied in a consistent and predictable manner. Casey’s ‘undue burden’ test has scored poorly on the workability scale. For example, the majority opinion found that Pennsylvania’s 24-hour waiting period requirement and its informed-consent provision did not impose undue burdens. In fact, the test is ambiguous and has generated a long list of circuit court conflicts. It is an unworkable test.

The Court concluded that both the Trimester Approach of Roe and the Undue Burden Test of Casey are not only outdated, but unworkable.

Our decision returns the issue of abortion to those legislative bodies, and it allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office. Women are not without electoral or political power. It is noteworthy that the percentage of women who register to vote and cast ballots is consistently higher than the percentage of men who do so. In the last election in November 2020, women, who make up around 51.5 percent of the population of Mississippi, constituted 55.5 percent of the voters who cast ballots.

Abortion is a unique act because it terminates life or potential life. Abortion is inherently different from marital intimacy, marriage, or procreation. And to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right.

Having shown that traditional stare decisis factors do not weigh in favor of retaining Roe or Casey, we must address one final argument that featured prominently in the Casey plurality opinion. The argument was cast in different terms, but stated simply, it was essentially as follows. The American people’s belief in the rule of law would be shaken if they lost respect for this Court as an institution that decides important cases based on principle and not on social and political pressures. There is a special danger that the public will perceive a decision as having been made for unprincipled reasons when the Court overrules a controversial watershed decision, such as Roe. A decision overruling Roe would be perceived as having been made under fire and as a surrender to political pressure and therefore the preservation of public approval of the Court weighs heavily in favor of retaining Roe.

This analysis starts out on the right foot but ultimately veers off course. The Casey plurality was certainly right that it is important for the public to perceive that our decisions are based on principle, and we should make every effort to achieve that objective by issuing opinions that carefully show how a proper understanding of the law leads to the results we reach. But we cannot exceed the scope of our authority under the Constitution, and we cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work. That is true both when we initially decide a constitutional issue and when we consider whether to overrule a prior decision. As Chief Justice Rehnquist explained, ‘The Judicial Branch derives its legitimacy, not from following public opinion, but from deciding by its best lights whether legislative enactments of the popular branches of Government comport with the Constitution. The doctrine of stare decisis is an adjunct of this duty and should be no more subject to the vagaries of public opinion than is the basic judicial task.’ In suggesting otherwise, the Casey plurality went beyond this Court’s role in our constitutional system.

Neither the Roe or the Casey decision has ended debate over the issue of a constitutional right to obtain an abortion. Indeed, in this case, 26 States expressly ask us to overrule Roe and Casey and to return the issue of abortion to the people and their elected representatives. This Court’s inability to end debate on the issue should not have been surprising. This Court cannot bring about the permanent resolution of a rancorous national controversy simply by dictating a settlement and telling the people to move on. Whatever influence the Court may have on public attitudes must stem from the strength of our opinions, not an attempt to exercise ‘raw judicial power.’  

We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision. We can only do our job, which is to interpret the law, apply longstanding principles of stare decisis, and decide this case accordingly. We therefore hold that the Constitution does not confer a right to abortion. Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives.

Roe’s trimester rule was expressly tied to viability and viability played a critical role in later abortion decisions.

We must now decide what standard will govern if state abortion regulations undergo constitutional challenge and whether the law before us satisfies the appropriate standard. Under our precedents, rational-basis review is the appropriate standard for such challenges. As we have explained, procuring an abortion is not a fundamental constitutional right because such a right has no basis in the Constitution’s text or in our Nation’s history.

It follows that the States may regulate abortion for legitimate reasons, and when such regulations are challenged under the Constitution, courts cannot “substitute their social and economic beliefs for the judgment of legislative bodies.” That respect for a legislature’s judgment applies even when the laws at issue concern matters of great social significance and moral substance. A law regulating abortion, like other health and welfare laws, is entitled to a “strong presumption of validity.” It must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests. These legitimate interests include respect for and preservation of prenatal life at all stages of development, the protection of maternal health and safety, the elimination of particularly gruesome or barbaric medical procedures, the preservation of the integrity of the medical profession, the mitigation of fetal pain, and the prevention of discrimination on the basis of race, sex, or disability.

These legitimate interests justify Mississippi’s Gestational Age Act. Except “in a medical emergency or in the case of a severe fetal abnormality,” the statute prohibits abortion “if the probable gestational age of the unborn human being has been determined to be greater than fifteen (15) weeks.” The Mississippi Legislature’s findings recount the stages of “human prenatal development” and assert the State’s interest in “protecting the life of the unborn.” The legislature also found that abortions performed after 15 weeks typically use the dilation and evacuation procedure, and the legislature found the use of this procedure “for nontherapeutic or elective reasons [to be] a barbaric practice, dangerous for the maternal patient, and demeaning to the medical profession.”

These legitimate interests provide a rational basis for the Gestational Age Act, and it follows that respondents’ constitutional challenge must fail. Thus, we end this opinion where we began. Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.

CONCLUSION

Now that the Supreme Court has finally come to the right opinion regarding abortion and has over-turned Roe v. Wade, the second of its opinions to stain the moral conscience of our country (the first being the Dred Scott case of 1857, written by Justice Roger Taney which held that negroes, whose ancestors were imported into the US and sold as slaves,” whether enslaved or free, were never intended to be included as citizens of the country and therefore have the right to sue in federal court), it’s time for the American people to realize that the high court has NOT stripped women of their “right” to an abortion. It has simply recognized the reality and legality of the issue, which is that it belongs with the individual states, which is where it was vested before the Roe opinion. That power to legislate on abortion now returns back to the states, where it rightfully belongs. The states were originally the ones left with facing these difficult questions and our Founding Founders knew that not every state would have the same answer.  But then again, that’s how our beautiful, messy system of federalism, liberty, and self-governance works.

Of course, if the American people truly want a constitutional amendment that identifies and protects a woman’s right to an abortion, there is a legal way to do so. It’s called the Article V Amendment process. Until that time, all debates, all protests, all drama queen moments, all calls to ignore the Court’s ruling, and all calls for insurrection are moot, destructive, and non-value-added.  Time to put our big lady and big man underpants on.

GOING FORWARD:  What needs to be done in the wake of Dobbs:

(1)  Since the Dobbs decision rightfully concludes that there is no “constitutional right” to an abortion (no right of a woman to control her fertility), that means abortion is no longer a federal issue and should no longer be addressed by the federal court system. Congress should pass a law that restricts the jurisdiction of the federal court system and eliminates certain issues, including abortion.  (See Reference section for treatise on “Congress’s Power Over Courts – Jurisdiction Stripping”)

(2)  Congress should enact a federal “Definition of Life” law which will define when a human life begins and which includes time(gestational) in the womb.

We need to be respectful of this landmark abortion ruling. It not only recognizes and revitalizes the Tenth Amendment and the critical principle of States’ rights, but it respects the sanctity and vulnerability of unborn human life. That should be an issue that we can all get behind.

Our opponents tell us not to interfere with abortion. They tell us not to impose our morality on those who wish to allow or participate in the taking of the life of infants before birth. Yet no one calls it imposing morality to prohibit the taking of life after a child is born. We’re told about a woman’s right to control her own body. But doesn’t the unborn child have a higher right, which is to life, liberty, and the pursuit of happiness?”  –President Ronald Reagan

Every legislature, every doctor and every citizen needs to recognize that the real issue is whether to

affirm and protect the sanctity of all human life, or to embrace a social ethic where some human lives

are valued and others are not. As a nation, we must choose between the sanctity of life ethic and the

‘quality of life’ ethic.”   — Ronald Reagan

References

Dobbs v. Jackson Women’s Health Organization (June 24, 2022) – https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf

Mississippi’s Gestational Age Law

“Congress’s Power over Courts: Jurisdiction Stripping and the Rule of Klein,” Congressional Research Service, August 9, 2018.  Referenced at: https://crsreports.congress.gov/product/pdf/R/R44967#:~:text=Congress%20has%20gone%20so%20far,of%20interest%20to%20the%20legislature

“The Supreme Court and Abortion,” The John Birch Society, May 17, 2022.  https://thenewamerican.com/the-deep-state-supreme-court-and-abortion/

Roe v. Wade, 410 U.S. 959 (1973) – https://www.law.cornell.edu/supremecourt/text/410/113

The Liberty Belle, “Roe v. Wade and the US Constitution,” May 2022.  Referenced at

ADDENDUM

I.  SELECTED EXCERPTS from ROE v. WADE, 410 U.S. 113 (1973) – Opinion written by Justice Harry Blackmun

The principal thrust of appellant’s attack on the Texas statutes is that they improperly invade a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy. Appellant would discover this right in the concept of personal ‘liberty’ embodied in the Fourteenth Amendment’s Due Process Clause; or in personal marital, familial, and sexual privacy said to be protected by the Bill of Rights or its penumbras [See Griswold v. Connecticut (1965)] or among those rights reserved to the people by the Ninth Amendment. Before addressing this claim, we feel it desirable briefly to survey, in several aspects, the history of abortion, for such insight as that history may afford us, and then to examine the state purposes and interests behind the criminal abortion laws.

The  Common Law: It is undisputed that at common law, abortion performed before ‘quickening’-the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy was not an indictable offense. The absence of a common-law crime for pre-quickening abortion appears to have developed from a confluence of earlier philosophical, theological, and civil and canon law concepts of when life begins. These disciplines variously approached the question in terms of the point at which the embryo or fetus became ‘formed’ or recognizably human, or in terms of when a ‘person’ came into being, that is, infused with a ‘soul’ or ‘animated.’ A loose consensus evolved in early English law that these events occurred at some point between conception and live birth. This was ‘mediate animation.’ Although Christian theology and the canon law came to fix the point of animation at 40 days for a male and 80 days for a female, a view that persisted until the 19th century, there was otherwise little agreement about the precise time of formation or animation. There was agreement, however, that prior to this point the fetus was to be regarded as part of the mother, and its destruction, therefore, was not homicide. Due to continued uncertainty about the precise time when animation occurred, to the lack of any empirical basis for the 40-80-day view, and perhaps to Aquinas’ definition of movement as one of the two first principles of life, Bracton focused upon quickening as the critical point. The significance of quickening was echoed by later common-law scholars and found its way into the received common law in this country.

England’s First Criminal Abortion Statute: England’s first criminal abortion statute, Lord Ellenborough’s Act, 43 Geo. 3, c. 58, came in 1803. It made abortion of a quick fetus, § 1, a capital crime, but in § 2 it provided lesser penalties for the felony of abortion before quickening, and thus preserved the ‘quickening’ distinction. This contrast was continued in the general revision of 1828, 9 Geo. 4, c. 31, § 13. It disappeared, however, together with the death penalty, in 1837, 7 Will. 4 & 1 Vict., c. 85, § 6, and did not reappear in the Offenses Against the Person Act of 1861, 24 & 25 Vict., c. 100, § 59, that formed the core of English anti-abortion law until the liberalizing reforms of 1967. In 1929, the Infant Life (Preservation) Act, 19 & 20 Geo. 5, c. 34, came into being. Its emphasis was upon the destruction of ‘the life of a child capable of being born alive.’ It made a willful act performed with the necessary intent a felony. It contained a proviso that one was not to be found guilty of the offense ‘unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother.’

A seemingly notable development in the English law was the case of Rex v. Bourne, (1939) 1 K.B. 687. This case apparently answered in the affirmative the question whether an abortion necessary to preserve the life of the pregnant woman was excepted from the criminal penalties of the 1861 Act. In his instructions to the jury, Judge MacNaghten referred to the 1929 Act, and observed that that Act related to ‘the case where a child is killed by a willful act at the time when it is being delivered in the ordinary course of nature.’  He concluded that the 1861 Act’s use of the word ‘unlawfully,’ imported the same meaning expressed by the specific proviso in the 1929 Act, even though there was no mention of preserving the mother’s life in the 1861 Act. He then construed the phrase ‘preserving the life of the mother’ broadly, that is, ‘in a reasonable sense,’ to include a serious and permanent threat to the mother’s health and instructed the jury to acquit Dr. Bourne if it found he had acted in a good-faith belief that the abortion was necessary for this purpose. The jury acquitted.  

Recently, Parliament enacted a new abortion law. This is the Abortion Act of 1967, 15 & 16 Eliz. 2, c. 87. The Act permits a licensed physician to perform an abortion where two other licensed physicians agree (a) ‘that the continuance of the pregnancy would involve risk to the life of the pregnant woman, or of injury to the physical or mental health of the pregnant woman or any existing children of her family, greater than if the pregnancy were terminated,’ or (b) ‘that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.’ The Act also provides that, in making this determination, ‘account may be taken of the pregnant woman’s actual or reasonably foreseeable environment.’ It also permits a physician, without the concurrence of others, to terminate a pregnancy where he is of the good-faith opinion that the abortion ‘is immediately necessary to save the life or to prevent grave permanent injury to the physical or mental health of the pregnant woman.’

American Law:  In this country, the law in effect in all but a few States until mid-19th century was the pre-existing English common law. Connecticut, the first State to enact abortion legislation, adopted in 1821 that part of Lord Ellenborough’s Act that related to a woman ‘quick with child.’ The death penalty was not imposed. Abortion before quickening was made a crime in that State only in 1860. In 1828, New York enacted legislation that, in two respects, was to serve as a model for early anti-abortion statutes. First, while barring destruction of an unquickend fetus as well as a quick fetus, it made the former only a misdemeanor, but the latter second-degree manslaughter. Second, it incorporated a concept of therapeutic abortion by providing that an abortion was excused if it ‘shall have been necessary to preserve the life of such mother, or shall have been advised by two physicians to be necessary for such purpose.’ By 1840, when Texas had received the common law, only eight American States had statutes dealing with abortion. It was not until after the War Between the States that legislation began generally to replace the common law. Most of these initial statutes dealt severely with abortion after quickening but were lenient with it before quickening. Most punished attempts equally with completed abortions. While many statutes included the exception for an abortion thought by one or more physicians to be necessary to save the mother’s life, that provision soon disappeared and the typical law required that the procedure actually be necessary for that purpose.

Gradually, in the middle and late 19th century the quickening distinction disappeared from the statutory law of most States and the degree of the offense and the penalties were increased. By the end of the 1950’s a large majority of the jurisdictions banned abortion, however and whenever performed, unless done to save or preserve the life of the mother.34 The exceptions, Alabama and the District of Columbia, permitted abortion to preserve the mother’s health.35 Three States permitted abortions that were not ‘unlawfully’ performed or that were not ‘without lawful justification,’ leaving interpretation of those standards to the courts.36 In the past several years, however, a trend toward liberalization of abortion statutes has resulted in adoption, by about one-third of the States, of less stringent laws, most of them patterned after the ALI Model Penal Code, § 230.3,37.

It is thus apparent that at common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect. Phrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today. At least with respect to the early stage of pregnancy, and very possibly without such a limitation, the opportunity to make this choice was present in this country well into the 19th century. Even later, the law continued for some time to treat less punitively an abortion procured in early pregnancy.

Grave defects of our laws, both common and statute, as they regard the independent and actual existence of the child before birth, as a living being. These errors, which are sufficient in most instances to prevent conviction, are based, and only based, upon mistaken and exploded medical dogmas. With strange inconsistency, the law fully acknowledges the fetus in utero and its inherent rights, for civil purposes; while personally and as criminally affected, it fails to recognize it, and to its life as yet denies all protection.’

abortion in early pregnancy, that is, prior to the end of the first trimester, although not without its risk, is now relatively safe. Mortality rates for women undergoing early abortions, where the procedure is legal, appear to be as low as or lower than the rates for normal childbirth. Consequently, any interest of the State in protecting the woman from an inherently hazardous procedure, except when it would be equally dangerous for her to forgo it, has largely disappeared. Of course, important state interests in the areas of health and medical standards do remain. The State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that ensure maximum safety for the patient. This interest obviously extends at least to the performing physician and his staff, to the facilities involved, to the availability of after-care, and to adequate provision for any complication or emergency that might arise. The prevalence of high mortality rates at illegal ‘abortion mills’ strengthens, rather than weakens, the State’s interest in regulating the conditions under which abortions are performed. Moreover, the risk to the woman increases as her pregnancy continues. Thus, the State retains a definite interest in protecting the woman’s own health and safety when an abortion is proposed at a late stage of pregnancy,

The third reason is the State’s interest-some phrase it in terms of duty-in protecting prenatal life. Some of the argument for this justification rests on the theory that a new human life is present from the moment of conception.45 The State’s interest and general obligation to protect life then extends, it is argued, to prenatal life. Only when the life of the pregnant mother herself is at stake, balanced against the life she carries within her, should the interest of the embryo or fetus not prevail. Logically, of course, a legitimate state interest in this area need not stand or fall on acceptance of the belief that life begins at conception or at some other point prior to life birth. In assessing the State’s interest, recognition may be given to the less rigid claim that as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone.

The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v. Georgia (1969); in the Fourth and Fifth Amendments, Terry v. Ohio (1968), Katz v. United States (1967); in the penumbras of the Bill of Rights, Griswold v. Connecticut; in the Ninth Amendment, or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska (1923). These decisions make it clear that only personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty,’ Palko v. Connecticut (1937) and are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia (1967); procreation, Skinner v. Oklahoma (1942); contraception, Eisenstadt v. Baird, family relationships, Prince v. Massachusetts (1944); and child rearing and education, Pierce v. Society of Sisters.

This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future.  Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.

On the basis of elements such as these, appellant and some amici argue that the woman’s right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. Appellant’s arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman’s sole determination, are unpersuasive. The Court’s decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one’s body as one pleases bears a close relationship to the right of privacy previously articulated in the Court’s decisions. The Court has refused to recognize an unlimited right of this kind in the past.

We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation. Although divided, most of these courts have agreed that the right of privacy is broad enough to cover the abortion decision; that the right, nonetheless, is not absolute and is subject to some limitations; and that at some point the state interests as to protection of health, medical standards, and prenatal life, become dominant. We agree with this approach.

Appellant (Roe) claims an absolute right that bars any state imposition of criminal penalties in the area. Appellee, on the other hand, argues that the State’s determination to recognize and protect prenatal life from and after conception constitutes a compelling state interest. As noted above, we do not agree fully with either formulation.

The appellee and certain amici argue that the fetus is a ‘person’ within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on re-argument. On the other hand, the appellee conceded on re-argument that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment.

The pregnant woman cannot be isolated in her privacy. She carries an embryo and, later, a fetus, which at some point becomes a living human being. (The unborn, of course, was immediately created as a unique individual the moment of conception). The situation therefore is inherently different from marital intimacy, or bedroom possession of obscene material, or marriage, or procreation, or education. As we have intimated above, it is reasonable and appropriate for a State to decide that at some point in time another interest, that of health of the mother or that of potential human life, becomes significantly involved. The woman’s privacy is no longer sole and any right of privacy she possesses must be measured accordingly.

Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.

It should be noted that there is a divergence of thinking on this most sensitive and difficult question – when does ‘life” begin. There has always been strong support for the view that life does not begin until live birth. As we have noted, the common law found greater significance in quickening. Physicians and their scientific colleagues have regarded that event with less interest and have tended to focus either upon conception, upon live birth, or upon the interim point at which the fetus becomes ‘viable’ (fetal viability), that is, potentially able to live outside the mother’s womb, albeit with artificial aid. Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks. Substantial problems for precise definition of this view are posed, however, by new embryological data that purport to indicate that conception is a ‘process’ over time, rather than an event, and by new medical techniques such as menstrual extraction, the ‘morning-after’ pill, implantation of embryos, artificial insemination, and even artificial wombs.

In areas other than criminal abortion, the law has been reluctant to endorse any theory that life, as we recognize it, begins before life birth or to accord legal rights to the unborn except in narrowly defined situations and except when the rights are contingent upon life birth. For example, the traditional rule of tort law denied recovery for prenatal injuries even though the child was born alive. That rule has been changed in almost every jurisdiction. In most States, recovery is said to be permitted only if the fetus was viable, or at least quick, when the injuries were sustained, though few courts have squarely so held. In a recent development, generally opposed by the commentators, some States permit the parents of a stillborn child to maintain an action for wrongful death because of prenatal injuries. Such an action, however, would appear to be one to vindicate the parents’ interest and is thus consistent with the view that the fetus, at most, represents only the potentiality of life. Similarly, unborn children have been recognized as acquiring rights or interests by way of inheritance or other devolution of property and have been represented by guardians ad litem. Perfection of the interests involved, again, has generally been contingent upon live birth. In short, the unborn have never been recognized in the law as persons in the whole sense.

In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake. We repeat, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, whether she be a resident of the State or a non-resident who seeks medical consultation and treatment there, and that it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes ‘compelling.’

With respect to the State’s important and legitimate interest in the health of the mother, the ‘compelling’ point, in the light of present medical knowledge, is at approximately the end of the first trimester. This is so because of the now-established medical fact that until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth. It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health. Examples of permissible state regulation in this area are requirements as to the qualifications of the person who is to perform the abortion; as to the licensure of that person; as to the facility in which the procedure is to be performed, that is, whether it must be a hospital or may be a clinic or some other place of less-than-hospital status; as to the licensing of the facility; and the like. This means, on the other hand, that, for the period of pregnancy prior to this ‘compelling’ point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient’s pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State.

With respect to the State’s important and legitimate interest in potential life, the ‘compelling’ point is at viability (fetal viability). This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.

Measured against these standards, Art. 1196 of the Texas Penal Code, in restricting legal abortions to those ‘procured or attempted by medical advice for the purpose of saving the life of the mother,’ sweeps too broadly. The statute makes no distinction between abortions performed early in pregnancy and those performed later, and it limits to a single reason, ‘saving’ the mother’s life, the legal justification for the procedure. The statute, therefore, cannot survive the constitutional attack made upon it here.

To assess the interests at stake in a pregnancy (the interests of the woman to control her body, health, and fertility versus the state’s interests in protecting the life of the unborn, the Supreme Court came up with a “Trimester Framework” to guide states to. enact different categories of abortion regulations at different stages. of pregnancy:

(From the Opinion)

A state criminal abortion statute of the current Texas type, that excepts from criminality only a life-saving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.

The Trimester Approach:

(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.

(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.

(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.

This holding, we feel, is consistent with the relative weights of the respective interests involved, with the lessons and examples of medical and legal history, with the lenity of the common law, and with the demands of the profound problems of the present day. The decision leaves the State free to place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those restrictions are tailored to the recognized state interests. The decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention. Up to those points, the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician. If an individual practitioner abuses the privilege of exercising proper medical judgment, the usual remedies, judicial and intra-professional, are available.

Our conclusion that Art. 1196 is unconstitutional means, of course, that the Texas abortion statutes, as a unit, must fall. The exception of Art. 1196 cannot be struck down separately, for then the State would be left with a statute proscribing all abortion procedures no matter how medically urgent the case.

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THE SUPREME COURT RULES ON THE MOST SIGNIFICANT SECOND AMENDMENT CASE: NY State Rifle & Pistol Association v. Bruen (June 23, 2022)

by Diane Rufino, June 23, 2022

Mark Levin has called the most recent Supreme Court ruling on the meaning and intent of the Second Amendment “the most significant Second Amendment case since Heller and McDonald.”  (landmark Second Amendment cases, 2008 and 2010, respectively). And I believe he is correct.

The state of New York makes it a crime to possess a firearm without a license, whether for inside or outside the home. An individual who wants to carry a firearm outside his or her home may obtain an “unrestricted” license to “have and carry” a concealed pistol or revolver IF he/she can prove that “proper cause exists” for doing so. An applicant satisfies the “proper cause” requirement ONLY IF he/she can “demonstrate a special need for self-protection distinguishable from that of the general community.”

There is no NY statute that adequately defines what constitutes “proper cause.” Consequently, the term is considered constitutionally “vague.”

In NY, a license applicant who wants to possess a firearm at home (or at a place of business) for self-defense must convince a “licensing officer” (usually a judge or law-enforcement officer) that, among other things, he is: (1) of good moral character; (2) has no history of crime or mental illness, and (3) that there exists no good cause for the denial of the license. To obtain a firearm license to carry outside the home for self-defense, the applicant must obtain an unrestricted license to “have and carry a concealed pistol or revolver.” If the applicant cannot make such a showing that “proper cause exists” to issue such a concealed carry license, he can only receive a “restricted” license for public carry, such as for hunting, target shooting, or employment.

NY requires evidence of a “special need” for self-protection outside the home. This special need standard is demanding and can rarely be met. NY courts generally require evidence of “particular threats to life and safety, attacks, or other extraordinary danger to personal safety.”

Petitioners Brandon Koch and Robert Nash, who are adult, law-abiding NY residents, were denied such an unrestricted license to carry a firearm in public on the basis that they failed to satisfy the “proper cause” requirement. They, in turn, sued state officials for a violation of their Second and Fourteenth Amendment rights to bear arms in public for self-protection by being required to show “a unique need for self-defense.”

In a ruling handed down today, written by Justice Clarence Thomas, the US Supreme Court held that New York’s “proper cause” requirement, in fact, violates an individual’s Second and Fourteenth Amendment rights. In a 6-3 opinion, the Court held that NY’s law prevents law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms in public for self-defense.

Not only did the Court re-affirm the essential and critical meaning of the Second Amendment (the right to keep and bear arms for self-protection and self-defense) and affirm that the right is not a secondary right but an essential right, but it also rejected a “2-step framework” (or test) that federal courts have instituted for analyzing Second Amendment challenges.

In order to determine whether a firearm regulation is consistent with the meaning and spirit (intent) of the Second Amendment, both the Heller and McDonald cases point to at least two relevant metrics: (1) whether modern and historical regulations impose a comparable burden on the right of armed self-defense, and (2) whether the regulatory burden is comparably justified.”

The test or framework from District of Columbia v. Heller (2008) and from McDonald v. Chicago (2010) is actually a simple one; it’s primarily a textual and history test. The test demands that there be a connection rooted in the text and history of the Second Amendment (which goes back to the 1600’s of England and to our American colonial times). The federal courts of appeal, however, have added a second step to the framework for Second Amendment challenges. They have added an “ends versus means” type of scrutiny or analysis. That is, the courts have included an analysis that would justify the means (the burden to one’s right to keep and bear arms) to the ends. In this case, by this opinion, the Supreme Court has outwardly rejected this second prong and announced that only the history and contextual prong of the test is necessary. The other prong violates and burdens an individual’s Second Amendment right, according to the Court. “We concluded that a constitutional

guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.”

“Despite the popularity of this two-step approach, it is one step too many. Step one of the predominant framework is broadly consistent with Heller, which demands a test rooted in the Second Amendment’s text, as informed by history. But Heller and McDonald do not support applying a “means-vs- end” analysis in the Second Amendment context. Instead, the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.”

“We reiterate that the standard for applying the Second Amendment is as follows: When the Second

Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’”

And so, it is with this new clarification of a Second Amendment test that the Supreme Court analyzed NY’s “proper cause” requirement in order to receive an unrestricted conceal-carry license to carry a firearm.

“The Heller case exemplifies this kind of straightforward historical inquiry. One of the District of Columbia’s regulations challenged ‘totally banned handgun possession in the home.’ The District addressed a perceived societal problem – firearm violence in densely populated communities, and it employed a regulation which was an outright ban on the possession of handguns in the home. Would the Founding Fathers have considered such an outright ban? After considering founding-era historical precedent,” including “various restrictive laws in the colonial period,” and finding that none was analogous to the District’s ban, the Court concluded that the handgun ban was unconstitutional.

New York’s ‘proper-cause’ requirement concerns the same alleged societal problem addressed in Heller – handgun violence, primarily in urban areas.”

In concluding his opinion, Justice Thomas wrote:

It is undisputed that petitioners Koch and Nash – two ordinary, law-abiding, adult citizens – are part of ‘the people’ whom the Second Amendment protects. Nor does any party dispute that handguns are weapons ‘in common use’ today for self-defense. We therefore turn to whether the plain text of the Second Amendment protects Koch’s and Nash’s proposed course of conduct—carrying handguns publicly for self-defense. We have little difficulty concluding that it does. Nothing in the Second Amendment’s text draws a home/public distinction with respect to the right to keep and bear arms. As we explained in Heller, the ‘textual elements’ of the Second Amendment’s operative clause – ‘the right of the people to keep and bear Arms, shall not be infringed’- guarantees the individual right to possess and carry weapons in case of confrontation. Heller further confirmed that the right to ‘bear arms’ refers to the right to ‘wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.’ This definition of ‘bear’ naturally encompasses public carry. Most gun owners do not wear a holstered pistol at their hip in their bedroom or while sitting at the dinner table. Although individuals often keep firearms in their home, at the ready for self-defense, most do not ‘bear’ them in the home beyond moments of actual confrontation. To confine the right to bear arms to the home would nullify half of the Second Amendment’s operative protections. Moreover, confining the right to bear arms to the home would make little sense given that self-defense is the central component of the Second Amendment] right itself.  [See Heller and McDonald]

After all, the Second Amendment guarantees an individual right to possess and carry weapons in case of confrontation and confrontation can surely take place outside the home. Although we remarked in Heller that the need for armed self-defense is perhaps “most acute” in the home, we did not suggest that the need was insignificant elsewhere. Many Americans hazard greater danger outside the home than in it. For example, an individual in Chicago is a good deal more likely to be attacked on a sidewalk in a rough neighborhood than in his apartment on the 35th floor of the Park Tower. The text of the Second Amendment reflects that reality. The Second Amendment’s plain text thus presumptively guarantees petitioners Koch and Nash a right to ‘bear’ arms in public for self-defense.

Conceding that the Second Amendment guarantees a general right to public carry, respondents instead claim that the Amendment “permits a State to condition handgun carrying in areas ‘frequented by the general public’ on a showing of a nonspeculative need for armed self-defense in those areas,” that claim, the burden falls on respondents to show that New York’s proper-cause requirement is consistent with this Nation’s historical tradition of firearm regulation. Only if respondents carry that burden can they show that the pre-existing right codified in the Second Amendment, and made applicable to the States through the Fourteenth, does not protect petitioners’ proposed course of conduct. (Respondents could not make such a showing).

Before offering the Crown to William and Mary, the British Parliament wrote the predecessor to our Second Amendment into the 1689 English Bill of Rights, guaranteeing that ‘Protestants . . . may have Arms for their Defence suitable to their Conditions, and as allowed by Law.’ Although this right was initially limited (being restricted to Protestants and held only against the Crown, but not Parliament), it represented a watershed in English history. Englishmen had never before claimed the right of the individual to arms. And as that individual right matured, by the time of the founding,” the right to keep and bear arms was “understood to be an individual right protecting against both public and private violence.

At the end of our long journey through the Anglo-American history of public carry, we conclude that respondents have not met their burden to identify an American tradition justifying New York’s ‘proper-cause requirement.’ The Second Amendment guarantees to ALL AMERICANS the right to bear commonly-used arms in public subject to certain reasonable, well-defined restrictions. Those restrictions, for example, limited the intent for which one could carry arms, the manner by which one carried arms, or the exceptional circumstances under which one could not carry arms, such as before justices of the peace and other government officials. Apart from a few late-19thcentury outlier jurisdictions, American governments simply have not broadly prohibited the public carry of commonly used firearms for personal defense. Nor, subject to a few late-in-time outliers, have American governments required law-abiding, responsible citizens to ‘demonstrate a special need for self-protection distinguishable from that of the general community’ in order to carry arms in public.

The constitutional right to bear arms in public for self-defense is not a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees. We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need. That is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion. It is not how the Sixth Amendment works when it comes to a defendant’s right to confront the witnesses against him. And it is not how the Second Amendment works when it comes to public carry for self-defense. New York’s proper-cause requirement violates the Fourteenth Amendment in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms.”

Summing up, according to Clarence Thomas’ majority opinion, the majority of the Supreme Court had little difficulty concluding that:

  • The plain text of the Second Amendment protects Koch’s and Nash’s proposed course of conduct – to be able to carry handguns publicly (ie, outside the home) for self-defense;
  • Nothing in the text of the Second Amendment draws any distinction between the right to keep and bear arms for self-protection in the home and the right to keep and bear arms for self-protection outside the home. There is no difference between the two. Both are an equally-protected right;
  • The definition of “bear” (to keep and bear arms) naturally encompasses the right to public carry;
  • The Second Amendment guarantees an “individual right to possess and carry weapons in case of a confrontation and safety threat, whereby such confrontations and safety threats certainly are more likely to take place outside the home;
  • The Constitutional right to keep and bear arms in public for self-defense is NOT a second-class right. It does not require individuals to explain their intent for wanting to bear arms in public and doesn’t require them to demonstrate to government officials some special need to do so.

A dissenting opinion was written by Justice Breyer, with Justices Sotomayor and Kagan joining.

WHAT TO TAKE HOME FROM THIS CASE:  

  • The Supreme Court, in assessing Second Amendment cases, must always look to history because “It has always been widely understood that the Second Amendment codifies a PRE-EXISTING right.” The Second Amendment was not intended to lay down a novel principle or a new right but rather codified a right – a natural right which has been inherited from our English ancestors.”  (After surveying English history dating from the late 1600’s, along with American colonial views leading up to our nation’s independence and founding, the Court concluded that “there is no doubt, on the basis of both text and history, that the Second Amendment confers an individual right to keep and bear arms.”
  • The clear and unequivocal meaning of the Second Amendment is that the right to keep and bear firearms is for self-protection. It encompasses, first and foremost, an individual right, as well as a collective right (when individuals form a militia)
  • The Court now holds that the Second Amendment and the Fourteenth Amendment (which incorporates the Second Amendment on the States) protect an individual’s right to carry a firearm for self-defense outside the home.

Reference:

NY State Rifle & Pistol Association v. Bruenhttps://www.supremecourt.gov/opinions/21pdf/20-843_7j80.pdf

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WHEN THE FEDERAL GOVERNMENT COMES FOR YOUR GUN RIGHTS & LIBERTIES

by Diane Rufino, June 14, 2022

As we all know, our inalienable rights do not come from government; they come from our Creator, endowed at our creation, and are recognized by nature’s law. Our rights are recognized in our constitutions – “Recognized” and not “granted.” They are recognized and enshrined so that government will always protect and secure them and not violate or burden them.

Liberty is the ability to freely exercise those rights, unencumbered by government authority. Liberty is defined as “the state of being free within society from oppressive and/or arbitrary restriction imposed by government authority or on one’s exercise of fundamental or civil rights and way of life, behavior, or political views.”

The most fundamental and sacred right is the RIGHT TO LIFE. As a corollary to that right is the right to protect and secure that life. And that is where the Second Amendment comes in.

The Second Amendment reads: “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.”   (“Shall not” means “Must not”).

The gist of the Second Amendment is that the individual must have the right and ability to protect his or her life against whatever force that might be used, by evil-intended persons, by foreign enemies, and even by their own government, to take their lives. Firearms is not necessarily limited to just muskets and rifles.

In this article, I wish to address the federal government’s latest gun grab – a series of Red Flag laws.

In spite of the “SHALL NOT BE INFRINGED” language of the Second Amendment, and the Re-assertion of the Reserved Rights of the individual states by the Tenth Amendment, the federal government insists it must take over the Second Amendment, put limits on it, and violate the rights of the American people, in antagonism to the founding purpose of our country. That is what is referred to as government tyranny.

Tyranny, as opposed to constitutionally-limited government, is the result of government abusing and unconstitutionally expanding their authority and imposing such oppressive or arbitrary restrictions on individual liberty. Tyranny is defined as “cruel and oppressive government or rule,” or “cruel, unreasonable, or arbitrary use of power or control.”  Thomas Jefferson defined it this way: Tyranny is when the government believes it can enact laws and policies legally without regard that they be illegal for the citizenry.

What can citizens do if the government, in general, fails to protect our inalienable and civil rights according to the Declaration of Independence and social contract theory and instead, evinces a desire to violate and prohibit their free exercise?  John Locke, an enlightenment philosopher, championed this new government theory and authored his Two Treatises of Government, which provided the foundation for Jefferson’s magnificent Declaration less than 100 years later. Jefferson explained, as according to Locke that if a sovereign violated these rights, the social contract was broken, and the people had the right to revolt and establish a new government.

And in fact, Jefferson wrote as much in the Declaration, in paragraph two: “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.”   (Declaration of Independence – NOT an outdated or racist founding document)

He also wrote: “The Constitution of the United States and the constitutions of most of our States assert that all power is inherent in the People…. That it is their right and duty to be AT ALL TIMES armed.”  And in another letter: “Rightful liberty is unobstructed action according to our Will within limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law because law is often but the tyrant’s will and always so when it violates the rights of the individual.” 

James Monroe wrote: “Of the Liberty of conscience in matters of religious faith, of speech and of the press, of the trial by jury of the vicinage of civil and criminal cases, of the benefit of the writ of habeas corpus, of the right to keep and bear arms…  If these rights are well-defined and secured against encroachment (as articulated in the US Constitution and state constitutions), it is IMPOSSIBLE that government should ever degenerate into tyranny.”

Finally, former US Supreme Court Justice Louis Brandeis wrote: “The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”  

Fidelity and loyalty to the US Constitution is so important, that an oath is taken by the President of the United States, the representatives in the US Congress, the federal judges, other federal employees, and even state government employees to “uphold, defend, protect, support, and preserve the Constitution of the United States.”  (Note that oaths include a variation of such terms).

Every fourth year, on January 20, Inauguration Day, the vice-president-elect is sworn in first, and repeats the same oath of office, in use since 1884, as senators, representatives, and other federal employees: “I _________, 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.”

Around noon, the president-elect recites the following oath, in accordance with Article II, Section I of the U.S. Constitution: “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”

Notice that the oath for all federal and state officials demands and requires that each “support, preserve, and defend the Constitution of the United States.”

Everyone in this country is required to attend school during the formative ages – 5 through 18 or 19. English, grammar, and reading are essential core subjects and so the definitions to the following terms should be crystal clear, and most especially to those serving as representatives in government on our behalf:

Uphold – to maintain, make no illegal or material changes (so as not to alter the meaning, intent, substance, or integrity of something)

Defend – to resist an attack made on something; to protect from harm, danger, or transformation

Protect – to keep safe from harm or injury. To preserve or guarantee by means of formal or legal measures

Support – to hold up, to make sure something remains functional and meaningful

Preserve – to maintain something in its original, existing, and intended state

On May 14 of this year, a deadly mass shooting killed 10 innocent persons at a TOPS supermarket in Buffalo, NY and then ten days later, on May 24, the horrific shooting at Robbs Elementary School in Uvalde occurred, killing 17 children and 2 teachers. The call from citizens concerned over the rise in school shootings invigorated Democrats to resume their agenda of gun control.

And so, on June 8, The Democrats in the US House of Representatives, with some willing Republicans, passed a wide-ranging gun control package, 223-204 (federal “Red Flag laws”) in response to the aforementioned mass shootings in Buffalo and Uvalde. Hopefully, but not certainly, the proposals will have almost no chance of being approved by the Senate and being signed into law by President Biden. The US Senate would need at least 10 Republican Senators to join with the Democrats. Unfortunately, at this point (June 14), there appears to be ten Rinos who would be so willing to do so:

Roy Blunt (R-Missouri) – (202) 224-5721

Richard Burr (R-NC) – (202) 224- 3154

Bill Cassidy (R-LA) – (202) 224-5824

Susan Collins (R-MA) – (202) 224-2523

John Corwyn (R-TX) – (202) 224-2934

Lindsey Graham (R-SC) – (202) 224-5972

Rob Portman (R-Ohio) – (202) 224-3353

Mitt Romney (R-UT) – (202) 224-5251

Patrick Toomey (R-VA) – (202) 224-4254

I urge all those who support and cherish (and depend upon) the rights recognized by the Second Amendment to contact these so-called Republican US Senators.  

The bill, a package of eight bills (federal “Red Flag Laws”), in essence, would allow federal courts to temporarily remove a firearm from an individual who is adjudged to pose a threat to themselves or others (the general definition of a “red flag law.” These bills would raise the age limit for buying a semi-automatic rifle, prohibit the sale of ammunition magazines with a capacity of more than 15 rounds, and would build on executive actions banning fast-action “bump stock” devices and “ghost guns” that are assembled without serial numbers. The House bills also include incentives designed to increase the use of safe gun storage devices and creates penalties for violating safe storage requirements, providing for a fine and imprisonment of up to five years if a gun is not properly stored and is subsequently used by a minor to injure or kill themselves or another individual.

Rep. Jim Jordan explains: “The answer is not to destroy the second amendment, but that is exactly where the Democrats want to go.”

Republicans have noted that a US appeals court ruling last month found California’s ban on the sale of semiautomatic weapons to adults under 21 was unconstitutional. “This is unconstitutional and it’s immoral. Why is it immoral? Because we’re telling 18-, 19- and 20-year-olds to register for the draft. You can go die for your country. We expect you to defend us, but we’re not going to give you the tools to defend yourself and your family,” said Thomas Massie of Kentucky.

The legislation passed by a mostly party-line vote of 223-204 (only one Democrat voted against the package).  As an aside, there are 19 states, along with the District of Columbia which have such “Red Flag” laws:  Washington, Nevada, California, Colorado, New Mexico, Illinois, Indiana, New York, New Jersey, Connecticut, New Hampshire, Vermont, Maryland, Delaware, Virginia, and Florida.


Do Guns Kill, or do People Kill?  That is the question.  Another question is this: Will more federal regulation work; will they prevent such horrendous and senseless killings? 

“Guns Don’t kill; People Kill.”  People with evil intent, committed to getting a firearm and succeeding in doing so, are the problem. Criminals and killers are who they are because they ignore laws. They find ways around the law. There are always ways for criminals and killers to get guns. Laws can never stop them. They and their evil heart use guns to kill. Good people, trained in firearm safety and committed to the rightful purpose of keeping and bearing arms for their self-protection and the protection of those unable to do so, are the ones who use guns to kill the bad guys. They are the ones that stop the violence. It is not the gun’s fault; it is not the fault of an “outdated” Second Amendment. It is the lack of decency in society, the fault of a culture that minimizes the role of the nuclear family, a general acceptance of crime, the rise of racism, the rise of uncontrolled illegal immigration, an out-of-control welfare system that rewards broken families, and the lack of religion or morality in schools and the vilification of religion generally. In the past decades, the results of all these changes in our society have translated into an increase in societal violence, with the most egregious being school shootings. This is what the statistics show, and here are those statistics:

For each decade, the numbers presented below represent (a) All Combined School Shootings; (b) Adolescent Shootings; (c) Adult Shootings; (d) All Combined Deaths; (e) Students Killed; (f) Adults Killed:

1940’s:   (a) 1    (b) 0    (c) 1    (d) 5    (e) 0    (f) 5     

1950’s:   (a) 0    (b) 0    (c) 0    (d) 0    (e) 0    (f) 0     

1960’s:   (a) 0    (b) 0    (c) 0    (d) 0    (e) 0    (f) 0     

1970’s:   (a) 1    (b) 1    (c) 0    (d) 2    (e) 0    (f) 2     

1980’s:   (a) 7    (b) 2    (c) 5    (d) 12    (e) 10    (f) 2     

1990’s:   (a) 13    (b) 10    (c) 3    (d) 36    (e) 29    (f) 7     

2000’s:   (a) 5    (b) 4    (c) 1    (d) 14    (e) 12    (f) 42     

2010’a:   (a) 8    (b) 6    (c) 2    (d) 51    (e) 42    (f) 9

So far, just in the past two years, 2021 and 2022, there have been 27 school shootings – Uvalde, TX marking the 27th such shooting, where 19 elementary-age children and 2 teachers were killed, and which came only 10 days after a deadly shooting at a TOPS supermarket in Buffalo, NY which senselessly claimed the lives of 10 people.     

Before going further, it should be pointed out that prior to the landmark District of Columbia v. Heller case (2008, written by Justice Antonin Scalia) and the McDonald v. Chicago case (2010, written by Justice Samuel Alito), the only case in which the US Supreme Court addressed the meaning of the Second Amendment was that of United States v. Miller (1939) in which, in a very limited ruling, the justices concluded that the Second Amendment does not guarantee an individual the right to keep and bear a sawed-off double-barrel shotgun. Writing for the unanimous Court, Justice James Clark McReynolds reasoned that because possessing a sawed-off double barrel shotgun does not have a reasonable relationship to the preservation or efficiency of a well-regulated militia, the Second Amendment does not protect the possession of such an instrument. The cases of Heller and McDonald reversed that interpretation and we now have our historic meaning restored – the second amendment confers actually two rights – the right of an individual to keep and bear arms for personal protection and security and the right of protection and security by an armed militia.

With the Heller and McDonald cases, the Supreme Court reiterated and emphasized strongly that “the Second Amendment protects the right to keep and bear arms for the purpose of self-defense” and that “individual self-defense is ‘the central component’ of the Second Amendment right.”

The University of Canterbury writes:

“For many people, the gun is a potent symbol of all that is wrong with the American culture. It is considered to represent aggression, violence, male dominance, sexual frustration and a host of other behaviour that is abhorrent in a civilized society. However, for other Americans, the very same gun symbolizes all that is right, independence and self-sufficiency, outdoorsmanship, and the ability to protect oneself and one’s family in an increasingly dangerous world. To these members of ‘the gun culture’, a firearm is the virtual embodiment of much loved traditional American values. Inevitably these two highly divergent viewpoints leave little room for agreement or even constructive debate.

This study considers the arguments put forward by the National Rifle Association of America (the NRA), an organization whose views are seldom articulated, although they are often regarded as the only formidable obstacle that stands before the goal of rational gun control. Clearly something must be done to counter rising crime and violence, yet it is the contention of this study that gun control, no matter how attractive such legislation may initially appear, is simply not the real answer within the American context.”

According to the NRA back in 1994, the organization defended the Second Amendment’s grant of human rights as follows (Remember, this was a time when Miller was the leading Supreme Court case on the subject):

NRA Defense of the Second Amendment

Obviously, the NRA emphatically rejects the Supreme Court’s determination that the Second Amendment ‘right’ of the people to keep and bear arms in merely a collective right which refers to the people only as a common body (See Miller). This, claims the NRA, is unconstitutional. The restrictive interpretation by the Court is regarded by the NRA as spelling dire peril for all of the other rights guaranteed by the constitution. For example, a letter to the editor in the June 1991 issue of the NRA’s American Rifleman lamented: ‘The First Amendment is our highest expression of democracy of the intellect and the spirit. The Second Amendment is the highest expression of the physical and the material foundation of our democracy. The First without the Second would reduce democracy to little more than a ghost haunting reality and praying that it will

not be exorcised by the natural forces of bureaucracy, greed, power, and corruption. History gives that ghost

little hope.

On the basis of such fears and given the significant number of important court decisions that were going against them, in 1978 the NRA Board of Directors established the Firearms Civil Rights Legal Defense Fund (FCRLDF), a powerful, nonprofit organization created specifically for the purpose of providing assistance in the form of legal advice and financial aid to individuals and groups in order to wage precedent-setting legal battles in defense of the Second Amendment and in favor of gun owners. The Fund also provides sponsorship and research grants for legal research and educational programs in a variety of gun-related areas. In order to finance its efforts, the FCRLDF, like numerous anti-gun organizations, has been awarded tax-exempt status and all donations made to the Fund are tax-deductible for federal tax purposes. However, this also means that the Fund

must be financially supported solely by contributions specifically made by concerned individuals and organizations.”

Despite the NRA’s fears, and even despite several important court decisions which have gone against them, in reality there is very little chance that the Second Amendment will ever be repealed, given the strong historical connection to the right to keep and bear arms enshrined in the English Bill of Rights of 1689, as well as Militia Laws, inherited from our mother country, Great Britain, and the overwhelming support of American patriots.  

While the NRA has continued to maintain a deep and abiding fear that recent anti-gun forces and outraged citizens over the rising number of school shootings could successfully push for the Second Amendment to be repealed, they fought hard to push for a traditional, historic interpretation of the Second Amendment and the liberalization of gun laws. The American legacy of firearms, and the right of the people to keep and bear firearms for self-protection and protection of their land (militias) has resulted in countries like Japan deciding not to invade the US homeland in WWII and Mexico not invading the US as well.

Charleton Heston said it best as the president of the NRA (National Rifle Association) – “You can take my gun when you pry it away from my cold dead hands.”


According to The John Birch Society, the Deep State’s war on the gun rights of Americans, especially now in response to the recent deadly mass shootings, has nothing to do with public safety but and everything to do with disarming victims so they can be more effectively oppressed. This is the conclusion and warning given by Alex Newman, a columnist with the John Birch’s The New American magazine. In fact, data and common sense both show that disarming law-abiding citizens worsens public safety, allowing criminals free rein.

A podcast from the John Birch Society, by Mr. Newman (titled “Behind the Deep State”), is available at this link –  https://thenewamerican.com/?powerpress_pinw=222452-podcast

We the People MUST NOT allow for the erosion of the Second Amendment – both its meaning and intent and its vital role in our lives and ultimately for the protection of all our freedoms and liberties. We the People MUST NOT allow a government gun grab.

So, what can we do, as American patriots and concerned citizens, to resist and refuse to enforce such federal bills?

First, let’s review our US Constitution, our US Bill of Rights, and our state constitutions.

As codified in law with the 2nd Amendment, the People did not delegate the power to regulate or control the ownership of firearms to the federal government. “The right to keep and bear arms SHALL NOT BE INFRINGED.” And, as the 10th Amendment makes clear: “All powers not delegated to the federal government are reserved to the States or to the People themselves.”  (Madison’s The Federalist Essay No. 45 goes into great detail about the division of power and especially the States’ reserved powers). The Tenth Amendment is actually a restatement of our essentially and critical form of government – federalism, a federation of sovereign states, each reserving their historic and traditional sovereign powers but delegating common authority to the federal government for common functions and mutual benefit),

State legislation to nullify federal gun laws or regulations focus on these basic and essential principles and propose to enact state law that bans the federal government and its officials within state jurisdiction from effectively enacting and enforcing such regulations. Enforcing an unconstitutional, overbroad and abusive federal law on a free people is the very definition of tyranny.

So, the first remedy is to contact all the traitorous Rino US Senators and demand that they NOT vote for the House “Red Flag laws.” 

I.  CONTACT THE FOLLOWING RINO US SENATORS.

I urge everyone who supports and wishes to defend and preserve the Second Amendment to contact the following so-called Republican Senators. Their office phone numbers are provided:

Roy Blunt (R-Missouri) – (202) 224-5721

Richard Burr (R-NC) – (202) 224- 3154

Bill Cassidy (R-LA) – (202) 224-5824

Susan Collins (R-MA) – (202) 224-2523

John Corwyn (R-TX) – (202) 224-2934

Lindsey Graham (R-SC) – (202) 224-5972

Rob Portman (R-Ohio) – (202) 224-3353

Mitt Romney (R-UT) – (202) 224-5251

Patrick Toomey (R-VA) – (202) 224-4254

II.  STATE NULLIFICATION OF UNCONSTITUTIONAL FEDERAL LAW:

The second remedy is State Nullification, which Thomas Jefferson termed “the rightful remedy.” 

A model State Sovereignty Tenth Amendment Resolution for the independent States has be en proposed by the Tenth Amendment Center. Every citizen should submit this to their state legislators and request that they take the issue up with the legislature, and also take up the issue of federal enforcement of red flag laws with their local sheriff. Sheriffs are the highest-ranking law-enforcement official and closest to the people. It they believe a law to be unconstitutional, arbitrary, or abusive, they have the discretion to refuse to enforce it.

MODEL TENTH AMENDMENT RESOLUTION

The following is a sample 10th Amendment House Concurrent Resolution approved by the Tenth Amendment Center. To all constitutional activists and concerned patriots, I encourage you to send this to your state senators and representatives and ask them to introduce this resolution in your state legislature.

A RESOLUTION affirming the sovereignty of the People of the State of _________.

WHEREAS, in the American system, sovereignty is defined as final authority, and the People, not government, are sovereign; and

WHEREAS, the people of the State of __________ are not united with the People of the other forty-nine states that comprise the United States of America on a principle of unlimited submission to their federal government; and

WHEREAS, all power not delegated by the people to government is retained; and

WHEREAS, the People of the several States comprising the United States of America created the federal government to be their agent for certain enumerated purposes only; and

WHEREAS, the Tenth Amendment to the Constitution of the United States reads as follows: “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;” and

WHEREAS, the Tenth Amendment defines the total scope of federal power as being that which has been delegated by the people to the federal government in the Constitution of the United States, and also that which is necessary and proper to carry into execution those enumerated powers; with the rest being left to state governments or the people themselves; and

WHEREAS, powers, too numerous to list for the purposes of this resolution, have been exercised, past and present, by federal administrations, under the leadership of both Democrats and Republicans, which infringe on the sovereignty of the people of this state, and may further violate the Constitution of the United States; and

WHEREAS, when powers are assumed by the federal government which have not been delegated to it by the People, a nullification of the act is the rightful remedy; that without this remedy, the People of this State would be under the dominion, absolute and unlimited, of whoever might exercise this right of judgment for them.

NOW THEREFORE, BE IT RESOLVED BY THE  _____ OF THE _______ GENERAL ASSEMBLY OF THE STATE OF ______, WITH THE SENATE

CONCURRING, that we hereby affirm the sovereignty of the People of the State of _______ under the Tenth Amendment to the Constitution of the United States over all powers not otherwise delegated to the federal government by the Constitution of the United States; and, be it further

RESOLVED, that this Resolution shall serve as a Notice and Demand to the federal government to cease and desist any and all activities outside the scope of their constitutionally-delegated powers; and, it be further

RESOLVED, that a committee of conference be appointed by this legislature, which shall have as its charge to recommend and propose legislation which would have the effect of nullifying specific federal laws and regulations which are outside the scope of the powers delegated by the People to the federal government in the Constitution; and, be it further

RESOLVED, that a committee of correspondence be appointed, which shall have as its charge to communicate the preceding resolutions to the Legislatures of the several States; to assure them that this State continues in the same esteem of their friendship as currently exists;  that it considers union, for specified national purposes, and particularly those enumerated in the Constitution of the United States, to be friendly to the peace, happiness and prosperity of all the States; and, be it further

RESOLVED, that a certified copy of this resolution be transmitted to the President of the United States, the President of the United States Senate, the Speaker and the Clerk of the United States House of Representatives, and to each member of this State’s Congressional delegation with the request that this resolution be officially entered in the Congressional Record as a memorial to the Congress of the United States of America.

III.  INDIVDUAL NULLIFCATION OF UNCONSTITUTION FEDERAL LAW.

The third Remedy is Individual Nullification.  Michael Boldin, founder and director of the Tenth Amendment Center explains in his article (and podcast) of June 8, 2022 four steps to this remedy:

1. The right to keep and bear arms is a natural right. Not a gift from government. It’s not something we get FROM the constitution or the 2nd Amendment. We have this right from our Creator, at birth. This is essential. Because as soon as we take a position that we have “2nd Amendment Rights” rather than a natural right to keep and bear arms, then the people with power – will ALWAYS end up using that power to define the limits of their own power.  (as long as the people keep letting them, that is)

2. We the people have to be willing to exercise our rights whether the government wants us to or not. James Otis put it this way: “There is nothing that will destroy liberty more than a prevailing opinion that it is better to tamely submit than nobly assert and vindicate our privileges.” And Thomas Jefferson might have the best reminder on this: “A free people claim their rights, as derived from the laws of nature, and not as a gift of their chief magistrate”

3. “Refuse to cooperate with officers of the Federal Government.” That was James Madison’s strategy for states and individuals to keep the feds in check without relying on the federal government to magically limit its own power. When the federal government assumes powers not delegated by the US Constitution, it is necessarily taking power and rights from other sovereigns, whether it be the States or We the People. The natural depositories of those rightful powers and rights have the right and the duty to protect them and re-assert them. We the People don’t have to wait for the State to act on our behalf.

However, we’ve seen a small handful of states take this essential step of not complying with unconstitutional federal gun laws. Missouri is the gold standard. Arizona is silver, and Montana takes the bronze. Almost every other state or local “2nd Amendment Sanctuary” creates a sanctuary for nothing.

By the way, the federal government has tried to keep guns out of the hands of individuals who pose a safety threat to themselves and others primarily with its federal firearms registry, and it has not worked to prevent the terrible and astounding rise in gun violence in our society.

4. Get rid of state laws restricting the right to keep and bear arms.Whether it’s state prohibitions that mirror federal ones (like suppressors or bump stocks), We the People MUST remove permit requirements, reciprocity and everything in between.

For more information and details on this option, listen to Michael Boldin’s podcast of June 8 at this link –

IV.   BUY AS MANY GUNS & AS MUCH AMMUNITION AS YOU CAN.  DEFEND YOURSELF AND THOSE WHO ARE UNABLE TO DO SO

Defy and resist federal gun control regulation by buying as many guns and as much ammunition as you can. There may well come a time when you feel your life and safety are at grave risk, as well as the life and safety of others. Exercise a robust belief in the Second Amendment. The government – NO government – has the right to deny you this fundamental right.

V.  INCLUDE MEANINGFUL SAFETY MEASURES AT SCHOOLS

If there is an increase in school shootings, the solution is not to ban guns from good people but rather to tighten security at local schools and universities. There are several viable options, such as:

(1)  Keep all school doors and windows locked during the day, while students and teachers are in the facility. Keep classroom doors locked during the day, while classes are in session.

(2)  Use only one main door for parents and visitors to enter the school and employ metal detectors.

(3)  Allow teachers, administrators, coaches, and school custodians to keep and carry firearms in their classrooms and offices, as well as be officially trained.

(4)  Request that veterans volunteer their time to provide school safety, or provide financial resources or other incentives in order to hire them or retired police officers or security officers.

These sensible measures make a whole lot more sense than violating and burdening the rights of American citizens in their fundamental right to keep and bear arms.

In an address to the annual meeting of the Phoenix Chamber of Commerce on March 30, 1961, California Governor Ronald Reagan spoke this prophetic words: “Freedom is never more than one generation away from extinction. We didn’t pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same, or one day we will spend our sunset years telling our children and our children’s children what it was once like in the United States where men were free.”

In his first gubernatorial inauguration address of January 5, 1967, he repeated the same sentiment: “Perhaps you and I have lived too long with this miracle of Liberty to properly be appreciative. Freedom is a fragile thing and it’s never more than one generation away from extinction. It is not ours by way of inheritance; it must be fought for and defended constantly by each generation, for it comes only once to a people.  And those in world history who have known freedom and then lost it have never known it again.

Knowing this, it’s hard to explain those among us who even today would question the people’s capacity for self- government. I’ve often wondered if they will answer, those who subscribe to that philosophy: if no one among us is capable of governing himself, then who among us has the capacity to govern someone else? Using the temporary authority granted by the people, in increasing number lately at all levels of government, have sought control even of the means of production as if they could do this without eventually controlling those who produce. And always they explain this as necessary to the people’s welfare. ‘The deterioration of every government begins with the decay of the principle upon which it was founded.’  This was written in 1748, and it’s as true today as it was then.”

Freedom requires the action and commitment of people who want to live a life of liberty. Only they can preserve it.

Diane Rufino

References:

Michael Boldin, “Essential Strategy: 4 Steps to Nullify Federal Gun Control,” Tenth Amendment Center, June 8, 2022.  Referenced at: https://blog.tenthamendmentcenter.com/2022/01/4-essential-steps-to-nullify-federal-gun-control/  

Michael Bolding, “Path to Liberty” (podcast), Tenth Amendment Center, January 14, 2022.  Referenced at:  https://blog.tenthamendmentcenter.com/2022/01/4-essential-steps-to-nullify-federal-gun-control/

The Oath of Office – https://history.house.gov/Institution/Origins-Development/Oath-of-Office/#:~:text=It%20reads%3A%20%E2%80%9CI%2C%20AB,of%20evasion%2C%20and%20that%20I

C. D. Fletcher, “Guns Don’t Kill, People Do: The NRA’S Case Against Gun Control,” University of Canterbury, 1994. Referenced at: file:///C:/Users/Diane%20Rufino%20Surface/Downloads/Fletcher_thesis_1994.pdf

School Shootings – https://www.researchgate.net/figure/Number-of-mass-school-shootings-and-deaths-from-1940-early-2018_fig2_324617091

The Guardian, “US House Passes Gun Control Bill, June 9, 2022.  Referenced at:  https://www.theguardian.com/us-news/2022/jun/09/us-house-passes-gun-control-bill-faces-defeat-senate

Alex Newman, “Behind the Deep State” (podcase), The John Birch Society.  Referenced at: https://thenewamerican.com/?powerpress_pinw=222452-podcast

Alex Newman, “The Plot Against Guns is Not About Safety But Tyranny,” The New American, June 13, 2022.  Referenced at:  https://thenewamerican.com/plot-against-guns-is-not-about-safety-but-tyranny/?mc_cid=f9b2612efc&mc_eid=8d4ce7a42a

The Tenth Amendment Center, “A Proposed Model State Sovereignty 10th Amendment Resolution” –  https://tenthamendmentcenter.com/10th-amendment-resolution/

State Red Flag Laws, Pew Researchhttps://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2021/10/05/red-flag-laws-are-saving-lives-they-could-save-more

California Governor Ronald Reagan’s First Inaugural Address – https://governors.library.ca.gov/addresses/33-Reagan01.html  

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A Fundamental Question and Some Fundamental, Yet Contested, Truths

by Diane Rufino, June 6, 2022

I’ve been asking this fundamental question for many years now: Is too much individual freedom ultimately destructive of the greater prize – liberty?  

Our Founding Fathers expressed their vision for an independent united States when they drafted and signed their names as delegates to the Declaration of Independence. In that grand document, Thomas Jefferson articulated the sovereignty of the individual according to God’s law and Nature’s law. Our rights come from our Creator; they are inalienable and can never be deprived, violated, or burdened by government. Such declarations are included in the Constitution and Bill of Rights and were included for a reason. They were meant to emphasize that the federal government was intended to be limited (limited to an articulated list of express powers and responsibilities) with its primary purpose to secure and respect the rights of the People.

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.”

Abraham Lincoln once said: “Don’t interfere with anything in the Constitution. That must be maintained, for it is the only safeguard of our liberties.” (Of course, as president, he egregiously ignored the Constitution and violated the protections granted to the People).

Individual freedom and liberty can only truly exist when government is limited and when love of country and love for one another is more important than political ambition and social agenda. Individual freedom and liberty are maximized when government is restricted in its ability to over-regulate, is limited in its ability to intrude on and impact our lives and our livelihood ( our ability to work to support ourselves and our families), is limited in its ability to regulate, burden, and limit what we can do with our property (our ability to develop it to its best potential), and is respective and diligent in adhering to the Constitution.

But government can only remain limited to the extent that We the People can successfully and effectively govern ourselves. The more we can govern ourselves, the better we can conduct ourselves with self-respect and    To respect others, the less we need government to enact laws to restrain us in our exercise of freedom. That is where religion and morality come in. Religion and morality (virtue) are two critical foundations of self-government. Without them, we can’t really know right from wrong. We act in such a way as to only serve ourselves and to put ourselves above others, to disregard community and to care little about the health and welfare of our country.

And that is exactly what is going on in our country today and has been going on for too many years. We see too many people who are one-issue activists who make too much noise and are ultimately taking our country down the wrong path. As the issues of abortion (extreme pro-abortion), gender identity, and the LGBTQ agenda specifically demonstrate, we are becoming a degenerate society which is becoming increasingly divorced from the foundations required for personal responsibility and successful self-government. We are becoming more and more distant and disrespectful of one another and this is threatening our collective love and support for our republic and threatening our collective appreciation and support of the Constitution, and ultimately, it will undermine the integrity and longevity of our country. Our freedom and our liberties exist only as long as the Constitution is adhered to and only as long as the federal government, a creation of the States through the Constitution, remains limited. 

Our founding values, although expressed beautifully and clearly in the Declaration of Independence, are based on certain “uncontested truths.” Since the early days of our founding and up until the mid-twentieth century, we all understood there are such uncontested truths, like religion and morality and virtue. Sadly, what we are seeing today is a progressive agenda that requires that these truths be contested, ignored, and rejected. It began with Margaret Sanger’s policy of ethnic cleansing and eugenics, then Supreme Court decisions taking prayer out of schools and out of the public square, then a judicial ruling acknowledging a constitutional right of a woman to an abortion (Roe v. Wade, hopefully to be over-ruled soon), and now to a regime embracing hostility to religion, to free speech, and in general, to conservatives. The hatred is palpable. The degeneracy is palpable.

Dr. Ryan T. Anderson, acclaimed author and speaker and president of the Ethics and Public Policy Center, has been talking about such “highly-contested truths.” According to Anderson, “highly-contested truths” are “the most important civilizational truths that shouldn’t be contested but are “things that we can’t afford not to get right.”

As he asserts, the first truth is that we are made in the image and likeness of God. Taking stock of our current American culture, we can see how this “truth” has become highly contested. Specifically, with the dehumanization of the unborn since the 1960’s and 1970’s and the articulation of a so-called constitutional right to have an abortion, 65 million unborn Americans have been unjustly killed in the 49 and a half years since Roe v. Wade was handed down. The contesting of this essential truth has become a moral and ethical stain on our nation and causes most of us, as Americans, to violate our collective conscience.

Dr. Anderson believes that “Abortion has corrupted everything it’s touched. It has corrupted our Constitution. It’s corrupted our courts and it’s corrupted the rule of law.”

The second highly-contested truth is that God asks very little of us in return, other than to accept the divinity of his son, Jesus Christ and to be faithful to Him, the Father. (This is not one of the “highly-contested” truths that Dr. Anderson talks about but it is one that I believe needs to be included).

In the gospel of Mark, chapter 12:28, the disciple recounts an account: “A scribe came to Jesus and asked, ‘Of all the commandments, which is the most important?’ It sounds like a fair question. After all, first-century Jews counted 613 regulations, 248 commands, and 365 prohibitions in the Law handed down by God. They ranged from the foundational (“You shall have no other gods before me.” Ex. 20:3) to the peripheral (“Do not cook a young goat in its mother’s milk.” Ex. 23:19). All of God’s laws are important of course, but surely some are more equal than others.

Jesus’ response was illuminating. It was simple and straightforward. He answered: “The most important one is this: ‘Love the Lord your God with all your heart and with all your soul and with all your mind and with all your strength’” (Mark 12:29–30). So here we have the “most important” commandment: Love the Lord.

But that was not the end of his reply. Rather than stopping after his apparently straight answer, Jesus continued: “The second is this: ‘Love your neighbor as yourself.’ There are no greater commandments than these” (12:31). In Matthew’s version, he explains that the second commandment is just as important as the first, adding that “all of God’s Law hangs on these two commandments” (22:39–40). The most important commandment, then, is twofold: Love the Lord and love your neighbor.

With these simple commandments, we have the foundations of religion – to love someone more than oneself – and the basis of the Golden Rule.

The third highly-contested truth is that we are created according to a biological scheme – as only two distinct genders, male and female. The push of transgender ideology, questionable gender identity, gender fluidity, and gender wokeness in our culture is something that is touching every segment of America. This new and progressive political agenda is not something that you can kind of opt out of, that you could hide from. It’s in all of our schools, all of our colleges and universities, all of our churches, all of our communities, in all of our movies (including Disney), and apparently, in almost every aspect of our current national discourse.

The victims of this counter-productive and scientifically-unsound ideology are diverse and wide-spread, from middle school girls who have been sexually assaulted in bathrooms by biological males identifying as female, to Catholic hospitals being sued for not performing sex reassignment procedures, to female college athletes not only losing chances to medal but also being forced to share a locker room with a biological male, and now to the innocent, vulnerable, and mentally-underdeveloped school-age children. As Anderson says: “It’s permeated everywhere in our culture, and we need people willing to stand up to tell the truth.”

The fourth highly-contested truth, according to Dr. Anderson, is that not only are we created male and female, but male and female are created for each other in marriage. Just because the US Supreme Court got it wrong in the Obergefell case (upholding gay marriage), Anderson argues, that “doesn’t change the truth about marriage, nor does it change the importance of marriage.”

Marriage has always been both a natural institution and a supernatural institution. It plays both a civic and a sacred function. Because of this, Anderson explains, even though we’ve temporarily experienced a setback with Obergefell, that doesn’t mean that we should stop advocating either for the truth about what marriage is, or simultaneously just trying to promote family and marriage.

The fifth and final truth is that all of us are created equal and all are created for God. It’s the corollary of being made in the image and likeness of God. This means it’s to our disadvantage to think or believe that we can organize our public life as if God doesn’t exist.

Dr. Anderson argues that this truth comes into play with the role of religion in the public square and the importance of religious liberty. “What we’ve tried to do now for two generations is to conduct our public life as if God doesn’t exist,” he says, “as if religion and morality have nothing to do with law and justice. And look where it’s gotten us.”

He continues: “The duties we have to God are the most important duties that we have, period. We need someone bringing that faith perspective to bear in our laws. We need a moral foundation to our laws.”

A virtuous people will courageously defend the rights endowed by the Creator and restored by the blood of patriots. But a fearful people, ignorant and without virtue and without a sense of a higher purpose, would readily cede these rights in exchange for a fleeting sense of security. They would gladly surrender their rights and their liberty in exchange for the protection and the management of their lives from the government. Princeton University’s Robbie George explains, “People lacking in virtue could be counted on to trade liberty for protection, for financial or personal security, for comfort … for having their problems solved quickly. And there will always be people occupying or standing for public office who will be happy to offer the deal.”

Our Constitution was designed and drafted to create a common government of limited responsibilities. Again, a limited government guarantees maximum individual liberty. Our country, comprised at the time of 13 individual sovereign states, fought for its collective independence based on the premise and promise of liberty. Upon winning that revolutionary war, governments were designed and tasked with protecting the rights and liberties of the People. Liberty first.

So the answer to my initial question is this: If we keep on our current course, if we continue to reject religion, morality, and the “uncontested truths,” and if we continue to allow the federal government to grow and to intrude into our lives and allow the federal government and the federal courts to make rulings that limit the rights that were once held as “inalienable,” then yes, individual freedom will ultimately jeopardize our liberty.

Let us never forget what John Adams said: ““We have no government armed with power capable of contending with human passions unbridled by morality and religion. Avarice, ambition, revenge or gallantry would break the strongest cords of our Constitution just as a whale easily goes through a net. Our Constitution was made only for a moral and religious People. It is wholly inadequate to the government of any other.” 

We want to leave our country in better shape for future generations. We may just have different ideas about how to do it, and that’s alright. Like our Founding Fathers, I will continue to seek to build consensus, uphold the rights of American citizens as outlined in the Constitution and work to pass legislation that preserves the greatness of our nation for years to come.

As President Ronald Reagan once advised: “Freedom is never more than one generation away from extinction. We didn’t pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same, or one day we will spend our sunset years telling our children and our children’s children what it was once like in the United States where men were free.”

References:

Dr. Ryan T. Anderson, “The 4 Most Contested Truths in America,” Truth Network, May 23, 2022.  Podcast referenced at:  https://www.truthnetwork.com/show/family-policy-matters-nc-family-policy/41908/

Andrew Wilson, ”All God’s Laws Are Equal. Are Some More Equal Than Others?,” Christianity Today, November 22, 2019.  Referenced at:  https://www.christianitytod

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A Parent’s Bill of Rights – What Every Parent is Entitled To

by Diane Rufino, March 29, 2022

We cannot and must not forget that the brains of school-age children have not finished developing. They can’t process, analyze, appreciate, or comprehend the consequences of the adult topics that are being forced on them through progressive policies, doctrines, and teachings. The mere suggestion of socially progressive issues, especially regarding racism and transgenderism, to a child or teen can cause them confusion and send them questioning their biological identity and their role in society. Not only does such material cause confusion, but it certainly serves to stereotype individuals by their skin color and associated character traits, as well as to make certain children feel they are perpetual victims of society and others feel that their race has been and continues to be the cause of their oppression. Why do we need to cause a young child to question his or her gender or sexuality? Why even talk about sexuality in the classroom at all?  In education, we hear about education standards and how they must align with a child’s brain development. That’s because we want our children to be able to absorb the particular lesson, process it, and learn it. Lessons must make sense to them when they are taught so that the learning process is effective. How does the teaching of racism, transgenderism, gender fluidity, alternative sex education, panoramic surveys, social emotional learning align with a young child’s brain development and ability to process?

Children are supposed to receive their grounding, their foundation, during their formative, school-age years, from their parents, their families, their church, and yes, from the permanent and unchanging laws of science, in particular Biology.

It’s not enough to think of liberal/progressive indoctrination in our public school systems as only Critical Race Theory. Yet that is what most parents are concerned with. In fact, there are so many different forms, so many distinct ways to get the same progressive teaching to our children. For example, there are inappropriate panoramic surveys, identity surveys, data-mining surveys, equity indoctrination, social emotional learning lessons (SEL), health classes on alternative life styles and alternative sex education, diversity education (diversity lessons), lessons on such progressive social issues as transgenderism, gender fluidity, pronoun choice, and the list goes on. In many ways, all of these progressive doctrines and policies are interconnected. They serve one ultimate goal: to further a progressive and liberal social agenda. To learn more about these progressive doctrines and polices, I recommend going to the Education First Alliance website –  https://www.edfirstnc.org/.

“Whoever controls the education of our children controls the future.” Nazi Germany understood this; Communist China understands this. And the progressive element in the United States most clearly understands this. These elements are in political strongholds all over the country – in the state boards of election and in local governments, including the local school boards.

A gross over-reach by education bureaucrats has teachers and school systems focused on social engineering and counseling rather than providing a sound, basic education. They want to steer our future in a progressive direction. Teachers debate “preferred pronouns” in discussing gender identity while our children don’t even know how to construct a proper sentence. Education has suffered greatly. Students aren’t even situated with the proper skills to enter college. North Carolina has an abysmal record on public education

It is unconscionable that our young children are being exposed to such vile and disgusting, inappropriate, potentially harmful (emotionally and psychologically), uber-liberal, and non-value-added material. It is bad enough that they are exposed to it on the internet, on TV, in almost every movie, in the news, in music videos and song lyrics, but to normalize such views and such conduct in the public school system, a place where our youth is supposed to be EDUCATED and not indoctrinated. They are supposed to be EDUCATED and not counseled.

In North Carolina, its Constitution, in Section IX (“Education”), reads: “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools, libraries, and the means of education, SHALL FOREVER BE ENCOURAGED.” (emphasis added)

Again, the foundations for religion and morality (ie, virtue) must come from the family and the church and NOT from the public school system and the rabid liberals that teach our children. (I acknowledge that not all teachers are liberal, but the conservative ones feel helpless). A solid foundation in science is also necessary, I believe, for a child to be able to properly and honestly address the issues of our decaying society. The laws of science are immutable and permanent.

And so, as I began to delve into the mess that has become our public education system, I became fixated on that provision in Section IX. Back in the day (and I’m not that old), it was always assumed that religion, morality, and knowledge were the legs to a solid public school education. It was always assumed that those in charge of the education of our children were in line with the rightful expectations of parents. And we, as parents, used to believe that we could go into the schools, into our child’s classroom, and see what they are learning and how they are being taught. This was so back in the 70’s when I was a child in the public school system in New Jersey and up until several years ago in North Carolina. What changed?  When did we lose the time-honored notion of a “sound, basic education?” When did we as parents lose our rights to know how our children are being educated? When did we lose control over our children?  When did the school system take control of them and disrupt the parent-child relationship?  When did the school system usurp our parental rights?

And so, I’d like to address a different topic with regard with the education of our children in this article –  a PARENT’S BILL OF RIGHTS.

As I mentioned to the Pitt County Board of Education in my remarks to them this month: “Parents are responsible for every detail of their young children’s lives, from potty training to eating healthy, to keeping them healthy and happy, to helping them to socialize well.  We used to think that that our responsibilities were lightened when our kids got on the school bus and went off to school. We trusted that they were in good and responsible hands and getting the best education the district could provide. But that’s no longer true. As we’ve learned over the past years, that responsibility continues, perhaps even moreseo, WHEN THEY GO OFF to SCHOOL.”

As displayed and reported all across the country, parents are frustrated, they feel they are being ignored and unheard, and most importantly, they honestly believe that their child’s basic educational needs are not met. 

The fact that education bureaucrats have chosen to focus on divisive issues while an entire generation of students aren’t reaching proficiency in the essential areas of math and reading is abhorrent. It shows an indifference toward our children’s futures. They debate preferred pronouns, while our children don’t even know how to construct a proper sentence. North Carolina students are in a crisis, and parents are labeled domestic terrorists for simply expressing their outrage at school board meetings. 

Parents have a voice and that voice needs to be heard. They have rights and they need to be respected and not ignored. Parents have every right to be involved in the classroom. After I heard Ms. Kelly Mann, the Outreach Director for the John Locke Foundation (Raleigh, NC) mention an article she had written on A Parent’s Bill of Rights for its website, I became energized to help promote it. I wrote to every single North Carolina house member and every single state senator asking them to consider a bill officially recognizing parents’ rights in the education of their children.

A Parent’s Bill of Rights should, at least, include all of the following. I’m sure parents can come up with additional “rights” and I hope they do. The first 10 rights come from Ms. Mann (I want to make sure she gets the credit, which she absolutely deserves) and the rest are ones that I’ve come up with:

  1. Education funds must follow students, not systems.
  2. Parents have the right to engage in the selection and approval of academic standards.
  3. Parents have the right to access educational materials, resources, and syllabi taught to their children in the classroom.
  4. Parents have the right to make medical care decisions on behalf of their children.
  5. Parents will receive timely notification of information related to the health, well-being, and education of their children.
  6. In-person education is a right that should always be available as a choice.
  7. Parents have the right to transparent access to school and school district academic performance.
  8. Parents have the right to access detailed and up-to-date district financial records.
  9. Parents have the right to opt their children out of the classroom for delivery of content listed in the syllabus with which they disagree.
  10. Parents have the right to know about situations affecting their minor child’s safety in school (individually or school-wide).. Parents shall be notified in a timely manner of all reported incidents pertaining to student safety, including all crimes or misdemeanors committed by teachers or other school employees.
  11. Parents should never have to “co-parent” with government. “Basic and sound education” is the sole province of government; parenting is the sole province of parents.
  12. The right to know what their minor child is being taught in school, including, but not limited to, curricula, books, and other instructional materials.
  13. Parents have the right to determine and choose which education environment will best serve their child’s education needs, without judgement from others or resistance by the school system, even if that environment is at home (home-schooling).
  14. Parents have the fundamental right to make decisions regarding their child’s education, well-being, and access to public school progressive indoctrination. Religion, morality, family and social values are matters to be directed and respected as belonging to parents.
  15. Parents shall not be required to sign non-disclosure agreements or similar forms for parental review of curricula, and shall be allowed to make copies of curriculum documents.
  16. Parents have the right to visit their child during school hours and to be able to sit-in on their child’s class, upon making a request to do so.
  17. Parents have the right to be provided with information, data, and statistics as to the shortcomings or failures (as well as successes) of each school system their child can potentially attend.
  18. Parents have the right to information on who is teaching their minor child, including guest lecturers and outside presenters.
  19. Parents have the right to information on individuals and organizations receiving school contracts and funding.
  20. Parents have the right to all school records, medical or otherwise, concerning their (minor) child.
  21. Parents have the right The right to information about the collection and transmission of their minor child’s data. Schools and school districts shall obtain parental consent prior to collecting any biometric data or other sensitive personal information on the minor child.
  22. Parents have the right to be notified should the school feel the need to have a counselor speak to their child, and to have the right to refuse to have their child “counseled” by the school.
  23. Parents have the absolute right to be notified of and to be involved in the filling out of ANY questionnaire or survey that the school assigns to their child. Likewise, parents have the absolute right to refuse to have their child answer such questionnaires or surveys. Parents have the right to control what information is shared with the school system (ie, government).
  24. For parents of exceptional children: Parents have the right to have their child’s exceptionalism diagnosed and served by the education system.
  25. Parents shall be able to remove their child temporarily from a class or activity that conflicts with their religious beliefs.
  26. Parents have the right to be heard regarding complaints about their child’s education, their child’s teacher/teachers, and how their child is being instructed. School boards must establish a way to consider and respond to complaints from parents.
  27. Parents have the right to make suggestions to their child’s school regarding education and to be taken seriously. Parents have a stake in their child’s education and a duty to over-see how it is being delivered.
  28. Parents shall be empowered to sue schools for injunctive relief that do not protect these rights. A pattern of such violations in a particular jurisdiction will trigger major reductions in education funding.

The proposed Parent’s Bill of Rights for North Carolina by Ms. Mann is actually nothing new. Several states already have such a Bill of Rights in place.  Florida, Missouri, and Indiana are just three such states. Governor Greg Abbott of Texas just recently proposed a Parent’s Bill of Rights for his state (January 25). And Senator Josh Hawley (R-Missouri) recently introduced one in the US Senate on November 16, 2021.

Will Estrada, president of the Parental Rights Foundation has been working for years to pass a parental rights amendment to the U.S. Constitution. Perhaps its day will come. In the meantime, the Parental Rights Foundation has managed to pass such an amendment in twelve states. These amendments affirm that “the liberty interest of the parent, and the nurture, education, care, custody, and control of the parent’s child is a fundamental right.”

Parents are stepping up and exerting their parental rights and I, for one, am so happy to see this. They are attempting to bring common sense and the inalienable rights of parents back to education. As Estada says: “Parents know they have the right to be in charge of their child’s education, upbringing, and care. This is not just a Republican issue or even a Christian issue. This is something parents all across the board want. They may have different views on how to raise their children, but we respect that and we advance it and we protect it legally here in our country.”

I strongly support a Parent’s Bill of Rights. The Coalition for Public Education group (C.O.P.E.) strongly supports a Parent’s Bill of Rights. The fact that parents are getting out of the kitchen, out of the house, and out to local school boards meetings all across the country because of their outrage and frustration over what is happening in the public school system, to the detriment of students, to the dismantling of the child-parent relationship, and to the integrity of education in general should impress upon boards of education the seriousness of the matter. Parents matter. Their rights matter. Children matter. The education of our next generation matters. Boards of Education, state legislators, and even our legislators in DC need to recognize and support a Parent’s Bill of Rights.

A Parent’s Bill of Rights is not only a good-faith gesture that signals and promises to parents that the system is on their side and that it will value their input and their views on how their children should be educated, but it is the RIGHT thing to do.

Resources:

Kelly Mann, “It’s Time for a Parent’s Bill of Rights,” John Locke Foundation.  https://www.johnlocke.org/its-time-for-a-parents-bill-of-rights/

Josh  Hawley, “Josh Hawley Introduces a Parents’ Bill of Rights to Defend Parents’ Role in Education.”   https://www.hawley.senate.gov/hawley-introduces-parents-bill-rights-defend-parents-role-education#:~:text=The%20Parents’%20Bill%20of%20Rights%20Act%20will%20empower%20parents%20to,books%2C%20and%20other%20instructional%20materials.

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Highlight on Gerrymandering and the Right of the People to Vote Fairly and Equally

by Diane Rufino, March 17, 2022

The term “Gerrymandering” refers to the act of manipulating the boundaries of voting districts to achieve some political advantage. The term was coined during Massachusetts Governor Elbridge Gerry’s tenure, who, in 1812, redrew the voting districts for the Massachusetts State Senate to favor his own party. One district caught the attention of the Boston Gazette, who published a political cartoon likening the district’s shape to that of a salamander and labeling the phenomenon “The Gerry-mander” – after the Governor.

Judicial Watch made headlines when it sued the state of Maryland over its “extreme gerrymandering” of congressional districts and got a favorable ruling by the U.S. Circuit of Anne Arundel County last week.

Tom Fitton, the head of Judicial Watch, made an excellent point in the case his group brought against the state of Maryland on behalf of 12 voters in each of Maryland’s congressional districts representing each of its congressional districts, challenging the state’s recent re-districting maps. Plaintiffs claim that the new maps are the product of extreme gerrymandering and violate and diminish their right to vote and their ability to have their vote fairly recognized (and their “voice” fairly heard). Fitton emphasized that the right at stake is (always is) the RIGHT OF THE PEOPLE TO VOTE AND TO BE HEARD EQUALLY and NOT the right of ambitious politicians and political parties to scheme and be successful at using their authority to attain political power and control.

The lawsuit originally filed by Judicial Watch against Maryland’s state administrator of elections and the chair of the state board of elections, Linda Limone (case name: Parrott et al. v. Lamone) in U.S. District Court for Maryland alleged that the controversial redistricting plan is unconstitutional because it transferred “the power to select congressional representatives from Maryland’s voters to legislators.” Judicial Watch also alleged that “to obtain an electoral advantage, mapmakers need to arrange both their own partisans and those of their electoral opponents in particular district configurations…. But voters do not choose where to live so as to suit the purposes of legislators trying to draw gerrymandered districts…. This is why legislators must distort district boundaries to create districts that contain the mix of voters that best achieves partisan goals.”

That complaint also alleged that the Maryland’s congressional district maps are “the most distorted and confused” in the country and were drawn in a way that violates the U.S. Constitution, especially the provision that “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States…” (Article 1, Section 2) as well as Article 1, Section 2 and the Due Process Clause of the 14th Amendment to the U.S. Constitution (which addresses the remedy for a violation of an individual right).

Judicial Watch argued that “the gerrymandering of Maryland’s congressional districts allows Maryland legislators to steal for themselves a significant portion of power to select congresspersons, which power should only be exercised ‘by the People’,” and that “gerrymandering is not something that Democrats and Republicans do to each other. Gerrymandering is something that legislators and other state actors do TO voters.”

According to the lawsuit, the 2011 redistricting plan unfairly, and in an intentionally-partisan fashion, uprooted millions of Marylanders from their previous congressional districts. In fact, the congressional districting plan greatly and confusingly reconfigured Maryland’s congressional districts.  Specifically, the new plan removed approximately 1.6 million Marylanders from their previous congressional district and placed them in a different district. In total, 27 percent of all Marylanders were removed from their previous congressional district and placed in a different congressional district. As the complaint alleged: “Maryland’s gerrymander produces split counties, county fragments, and split precincts,” resulting in the arbitrary political fragmentation of the state.”  The lawsuit argues that the new plan harms not only Republicans, but also Democrats and Independent voters.

Maryland’s recent history of partisan gerrymandering is no secret. It’s 2011 congressional district map, for example, remains one of the most notorious intentional partisan gerrymanders in U.S. history. A federal district judge even openly doubted that it could provide “fair and effective representation for all citizens.” 

The lawsuit relates that a bipartisan commission recommended a map to Maryland Governor Larry Hogan on November 5 that he approved, but the legislature passed a different proposal in a straight party-line vote. On December 9, 2021, Hogan vetoed this proposal, and on the same day, the state legislature overrode his veto again along a party line vote.

As Fitton explains: “Maryland’s gerrymandered congressional district map treats voters like cattle, herding them into districts that defy sense. Traditionally, it has been accepted that the people select their elected representatives.  But currently in Maryland, it’s the legislators who are selecting their constituents. The Supreme Court should address the unconstitutional corruption of gerrymandering, beginning with Maryland.”

Consequently, the plaintiffs asked the district court, among other forms of relief, to declare the Maryland maps unlawful and require Maryland to redraw the maps.

Unfortunately, the U.S. District Court for the District of Maryland ruled for the state in dismissing the plaintiffs’ claims.

Judicial Watch appealed the ruling. (Fitton has already filed an appeal with the US Supreme Court). The appeal is unique in that it presented a “judicially manageable remedy” necessary to resolve clear cases of political gerrymandering, specifically the Polsby-Popper scale, which is one of the most widely used measures of electoral district compactness. Robert Popper, co-creator of the Polsby-Popper scale, is the lead Judicial Watch attorney in this lawsuit and directs the organization’s Election Integrity Project.

Compactness measures have been widely used to assess geographic gerrymandering. Although it is generally accepted that legislative districts should be “compact,” as is often the case, that definition has become something malleable in the hands of ambitious politicians. Numerous, sometimes conflicting, measures of compactness across a number of theoretical dimensions have been proposed in the academic literature, and Judicial Watch prefers the use of the Polsby-Popper scale.

The Polsby-Popper (PP) scale (measurement) is a straightforward application of a mathematically-derived compactness measure which looks at the ratio of the area of the district (AD) to the area of a circle whose circumference is equal to the perimeter of the district (PD). A district’s Polsby-Popper score closest to 1 indicates a more compact district. This scale can be used as a judicially manageable, discernable, and non-arbitrary standard with which to measure, and deter, excessive partisan gerrymandering.     

The formula is  PP = 4 x AD / PD

Maryland’s congressional districts have an average Polsby-Popper compactness score of 11.3.  This is the lowest (ie, the worst) average compactness score for congressional districts of any state in the nation. Outside experts agreed that the plan was flawed, with the nonpartisan Princeton Gerrymandering Project giving it a grade of “F” for fairness and geographic compactness. In 2020, Republicans accounted for approximately 35% of Maryland’s congressional votes, but they’re unlikely to win even a single seat under this plan. This outcome wouldn’t and couldn’t be possible without political gerrymandering.

The congressional map drawn by Democrats would have most likely guaranteed them at least seven of Maryland’s eight House seats, or 87 percent of the state’s seats.

Luckily, and wisely, the appellate court, the U.S. Circuit Court of Anne Arundel County, agreed with the Plaintiffs and Judicial Watch.

On March 25, senior Maryland judge Lynne A. Battaglia of the Circuit Court for Anne Arundel County ruled that Democrats in the state had drawn an “extreme gerrymander” and finally threw out the state’s new congressional map, drawn up by its Democrat-majority legislature. The judge’s ruling found that the map drawn by Democrats had “constitutional failings” and ignored requirements of focusing on “compactness” and keeping similar communities together. In her opinion, she wrote: “All of the testimony in this case supports the notions that the voice of Republican voters was diluted and their right to vote and be heard with the efficacy of a Democratic voter was diminished.”

“With regard to Article 7 of the Maryland Declaration of Rights, Judge Battaglia continued, “the Plaintiffs, based upon the evidence adduced at trial, proved that the 2021 Plan was drawn with partisanship as predominant intent, to the exclusion of traditional redistricting criteria, by the party in power, to suppress the voice of Republican voters. The right for all political participation in Congressional elections … was violated by the 2021 Plan.”

Concluding, Judge Battaglia ordered the gerrymandered district plan to be permanently enjoined (ie, unenforceable) and ordered the Maryland General Assembly to redraw the map by March 30. A hearing for the new map has been set for April 1.

Judicial Watch president Fitton was happy that the appellate court has ordered Maryland to go back and re-draw district maps that respect Maryland voters and don’t make a mockery of common sense and the rule of law. In a public statement, he said: “This key court victory against abusive partisan gerrymandering by Democrats in Maryland could set a national precedent.”

What can all states do in light of this ruling?

First, let’s acknowledge what is going on in the scheming dens of Democratic politicians. Democrats across the country have taken a much more aggressive tack this redistricting cycle than they have in the past, seeking to counteract what they have long denounced as extreme Republican gerrymanders from the 2010 cycle. Democratic state legislatures in New York, Illinois and Oregon drew new maps this year that would have given them a significant advantage over Republicans — and congressional delegations at odds with the overall partisan tilt of each state.

Voters do not choose where to live so as to suit the intentions and purposes of legislators and ambitious (desperate) political parties. They should not have to be used as pawns in political gamesmanship.

The right to vote and for each citizen to be heard equally and fairly is the foundation of this country. It supports the founding notion that it is the people’s country and the people’s government, as outlined in the Declaration of Independence and organized under the social compact, the US Constitution.

There should never be a conscious and intentional effort to re-draw (that is, “gerrymander”) for partisan gain. As Fitton explains, such gerrymandering dilutes and diminishes a voter’s right to cast a fair and equal ballot. Every voter has the rightful expectation that his or her vote will count equally and has not been co-opted and manipulated.


So….  What is the solution? 

Again, extreme gerrymandering violates and diminishes the right of the PEOPLE to vote on an equal basis with all other voters and to be able to be fairly heard through their vote. In the lawsuit he filed on behalf of disgruntled Maryland voters who believed they have been manipulated solely for political purposes, Fitton emphasized that the right at stake is (always is) the RIGHT OF THE PEOPLE TO VOTE AND TO BE HEARD EQUALLY and NOT the right of ambitious politicians and political parties to scheme and be successful at using their authority to attain political power and control.

In 2019, in the case Rucho v. Common Cause, the US Supreme Court opined that the states (North Carolina and Maryland named specifically) are allowed to gerrymander, explaining that “partisan gerrymandering claims present political questions beyond the reach of the federal courts.” Chief Justice John Roberts wrote in his majority opinion that states and Congress could pass laws to prevent politically oriented districts but asking the courts to do so would be “an unprecedented expansion of judicial power.”  In other words, the case restates a simple principle based on the separation of powers. Of course, there is also the notion of federalism which (as the Tenth Amendment and Federalist No. 45 clearly explain) which leaves the administration and regulation of elections to the states.

Re-districting always involves some partisan benefit. It can’t be helped. It’s the nature of politics. But what about “extreme gerrymandering”?

The solution I believe is for the state legislature to draft amendments to our NC State Constitution, to be adopted by voters in a ballot initiative. There MUST be an amendment or amendments outlining a precise formula (such as the Polsby-Popper measurement) or procedure that protects and preserves the PEOPLE’S right to vote fairly and with transparency and forever prevents and forbids the ability for intentional partisan re-districting (intention to be inferred from the re-districting plans). There must never be extreme gerrymandering in redistricting maps.

State leaders have to stop playing politics with the people and do what is right. We must always remember that the first priority of government is always to protect, respect, and secure the rights of the people, including the right to vote.

Resources:

Miller v. Johnson  515 U.S. 900 (1995)   [Supreme Court prohibits gerrymandering]

“Judicial Watch Files Voter Lawsuit Challenging Constitutionality of Maryland Gerrymandering Plan,” Judicial Watch, March 24, 2022

“Judicial Watch Victory: Court Rules against Democratic Partisan Gerrymander in Maryland.” Judicial Watch. March 25, 2022

Judicial Watch Continues Fight against Maryland Gerrymandering in US Supreme Court, Judicial Watch, January 5, 2017.  https://www.judicialwatch.org/judicial-watch-continues-fight-maryland-gerrymandering-us-supreme-court/

Pete Williams, “Supreme Court Upholds Gerrymandering in North Carolina, Maryland, NBC News, June 27, 2019.  Referenced at: https://www.nbcnews.com/politics/supre me-court/supreme-court-allows-gerrymandering-north-carolina-maryland-n1014656    [The case – Rucho v. Common Cause]

Polsby Popper scale – https://fisherzachary.github.io/public/r-output.html

Polsbey Popper Scale, analysis for district mapping (presentation) – https://uirc.utah.gov/wp-content/uploads/Map-Grading-Presentation.pdf Ruling, Rucho v. Common Causehttps://www.supremecourt.gov/opinions/18pdf/18-422_9ol1.pdf

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The Danger in Stereotyping Individuals

by Diane Rufino, March 26, 2022

Human beings come in all shapes, sizes, forms, and appearances, and with the passing of time, we are seeing an even greater diversity, mostly of a progressive nature. The so-called “window-dressing” is becoming more audacious and alarming. But one thing is clear – a person’s gender identity is stamped at birth by his or her sex chromosomes. The chromosomes (XX for female and XY for male) are in almost every single cell of the body and are unchanging. Gender, therefore, is biologically defined. Aside from surgery and hormone treatments (including psychology sessions), a person’s physicality, or physical features, are also set by his or her DNA, the blueprint for life.

It is true that we are not all alike, and in fact, many of us are not alike. But we nonetheless treat each other with kindness and compassion, as we are supposed to. We are all God’s children. We respect their choices but we, as being created and endowed with a free conscience, do not necessarily have to accept or support those choices. We tend to accept them, out of respect, civility, and a desire to life in a peaceful community.

The problem is that along the line of history, people have decided to divide individuals according to their God-given, genetically-acquired features in order to claim superiority in one way or another. This is where stereotyping comes in. In particular, I want to address “invidious stereotyping,” which means to be characterized in an objectionable manner, based on an unpleasant or offensive trait.

When individuals are stereotyped, they are demeaned, marginalized, and diminished in society, relegated to a second-class status. When this happens, it is easy to discriminate against them, segregate them, phase them out of society (eugenics; ethnic cleansing), and even murder and annihilate them. We’ve seen all this throughout history and it has disturbed us greatly.

Take the unborn, for example. They are marginalized because they are not seen by many as “persons.” Yet they are. Every pregnancy, especially into the second trimester, involves two distinct lives, defined again by their DNA. Each life should be protected and in a compassionate and rational world, they would be. An unborn child may not be wanted by its natural mother, but there are plenty of people who would love the chance to give that child a home and plenty of love. This blatant disregard for the unborn and the greater weight by the courts to the mother has led to the abomination that has been abortion.

Take African-Americans as another example. Africans were seen as an inferior, backwards and barbaric people back in the sixteenth and seventeenth centuries, thus justifying slavery in the 18th century. We can’t but conjure up images of Sambo, Jim Crow, the Savage as representative of black men, and Mammy, Aunt Jemimah, Sapphire, and Jezebelle as representative of black women, and the characterization they helped institutionalize – the stereotype of a simple-minded, lazy, happy black person who was happy to serve and to be taken care of (“a happy slave”). Black women, in particular, were characterized as dominant, controlling, nurturing caretakers, except for Jezebelle, which is the only caricature that hints to the sexual nature of black women.

The ninth edition of the Encyclopedia Britannica, published in 1884, stated authoritatively that “…the African race occupied the lowest position of the evolutionary scale, thus affording the best material for the comparative study of the highest anthropoids and the human species.” This invidious characterization of African-Americans as apelike savages was exceptionally pervasive. For example, in 1906, the New York Zoological Park featured an exhibit with an African-American man and a chimpanzee. And then several years later, the Ringling Brothers Circus exhibited “the monkey man,” a black man was caged with a female chimpanzee that had been trained to wash clothes and hang them on a line.  

Racial stereotypes that portray blacks as “mentally inferior, physically and culturally unevolved, and apelike in appearance” were supported by prominent white figures like Abraham Lincoln and Andrew Johnson. Theodore Roosevelt publicly stated that “As a race and in the mass, the Negroes are altogether inferior to whites.”

In the infamous 1856 Supreme Court case of Dred Scott v. Sandford,Chief Justice Roger Taney, the court members acknowledged such stereotypes and concluded that persons of African origin were an inferior race and suited only to serve the more advanced and civilized races. Taney wrote:

      “In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show, that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument…They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit

     A free negro of the African race, whose ancestors were brought to this country and sold as slaves, is not a ‘citizen’ within the meaning of the Constitution of the United States. He cannot become a citizen of the United States, nor will he be entitled to sue in its courts, nor to any of the privileges and immunities of a citizen in another State.

      When the Constitution was adopted, they were not regarded in any of the States as members of the community which constituted the State and were not numbered among its “people or citizens.” Consequently, the special rights and immunities guaranteed to citizens do not apply to them. And not being “citizens” within the meaning of the Constitution, they are not entitled to sue in that character in a court of the United States, and the Circuit Court has not jurisdiction in such a suit.  

      Every citizen has a right to take with him into the Territory any article of property which the Constitution of the United States recognizes as property. The Constitution of the United States recognizes slaves as property and pledges the federal government to protect it. And Congress cannot exercise any more authority over property of that description than it may constitutionally exercise over property of any other kind. The act of Congress (ie, the Missouri Compromise), therefore, prohibiting a citizen of the United States from taking with him his slaves when he removes to the Territory in question to reside is an exercise of authority over private property which is not warranted by the Constitution, and the removal of the plaintiff by his owner to that Territory gave him no title to freedom.”  {Note: The Dred Scott ruling declared the Missouri Compromise to be unconstitutional and unenforceable].

The stereotypes of blacks in our American history has been a severe blight and stain on our nation’s image and continues to infect race relations. Slavery sent the message that blacks were an inferior race of people, uncivilized and barbaric, suited only to serve the more advanced races. And Jim Crow institutionalized the notion that blacks were nothing more than second-class citizens. Race seems to always be an issue and a sore spot for discussion. Sadly, it continues to fuel the allegations of racial intolerance and racial tension.

Who can forget the horrendous plight of the European Jews under the crushing and ambitious political agenda of Adolf Hitler and the German Nazi regime? Hitler’s Minister of Propaganda, Joseph Goebbels, created a masterful propaganda scheme to convince the German people that Jews were a despicable, conniving, and genetically-inferior race for the ultimate goal to segregate them out of all aspects of German society and ultimately engineer a genetically-superior “master German race.”

In Nazi caricatures, Jews were usually depicted as having large hook-noses, and dark beady eyes with drooping eyelids. Exaggerated or grotesque Jewish facial features were a staple theme in Nazi propaganda and, less frequently, in Soviet propaganda. The idea of the large and crooked (hooked) “Jewish nose” remains one of the most prevalent and defining features to characterize someone as a Jew. This widespread stereotype can be traced back to the 13th century. In Nazi propaganda, Jews were drawn to look like hideous, hairy, demented-looking creatures with large noses. They were also compared to rats, as if they were vermin.

Jews tend to be portrayed as scheming individuals, greedy and miserly. Lastly, they are characterized as having a distinctive way of speaking.

Demonizing and demeaning Jews made it easy for the Nazi leaders and the German people to look the other way at the systemic genocide of over 6 million German and European Jews in ghettos and concentration camps, all for the ethnic cleansing and purification of the German race.

Again, the demeaning of persons of African ancestry has been a huge stain on our country’s history. But another case of stereotyping has also had a stain on our more recent history, and that form of stereotyping took the form of characterizing gay men as “freaks” and generally ignoring them, their charades, and their devasting epidemic. In his magnificent book “And the Band Played On: Politics, People, and the AIDS Epidemic” author Randy Stilts explains in great detail how the demonization and stereotyping and intolerance of “distinct classes of outcasts and social pariahs” led to the AIDS epidemic of the 1980’s and the needless deaths of hundreds of thousands of Americans.

In his prologue, Stilts wrote:

       “By October 2, 1985, the morning Rock Hudson died, the word was familiar to almost every household in the Western world…..  AIDS.

      Acquired Immune Deficiency Syndrome had seemed a comfortably distant threat to most of those who had heard of it before, the misfortune of people who fit into rather distinct classes of outcasts and social pariahs. But suddenly, in the summer of 1985, when a movie star was diagnosed with the disease and the newspapers couldn’t stop talking about it, the AIDS epidemic became palpable and the threat loomed everywhere.

     Suddenly, there were children with AIDS who wanted to go to school, laborers with AIDS who wanted to work, and researchers who wanted funding, and there was a threat to the nation’s public health that could no longer be ignored. Most significantly, there were the first glimmers of awareness that the future would always contain this strange new word. AIDS would become a part of American culture and indelibly change the course of our lives.

     The implications would not be fleshed out for another few years, but on that October day in 1985, the first awareness existed just the same. Rock Hudson riveted America’s attention upon this deadly new threat for the first time, and his diagnosis became a demarcation that would separate the history of America before AIDS from the history that came after.

     The timing of this awareness, however, reflected the unalterable tragedy at the heart of the AIDS epidemic. By the time America paid attention to the disease, it was too late to do anything about it. The virus was already pandemic in the nation, having spread to every corner of the North American continent. The tide of death that would later sweep America could, perhaps, be slowed, but it could not be stopped.

     The AIDS epidemic, of course, did not arise full-grown from the biological landscape; the problem had been festering throughout the decade. The death tolls of the late 1980’s are not startling new developments but an unfolding of events predicted for many years. There had been a time when much of this suffering could have been prevented, but by 1985 that time had passed. Indeed, on the day the world learned that Rock Hudson was stricken, some 12,000 Americans were already dead or dying of AIDS and hundreds of thousands more were infected with the virus that caused the disease. But few had paid any attention to this; nobody, it seemed, had cared about them.

     The bitter truth was that AIDS did not just happen to America; it was allowed to happen by an array of institutions, all of which failed to perform their appropriate tasks to safeguard the public health. This failure of the system leaves a legacy of unnecessary suffering that will haunt the Western world for decades to come.

      There was no excuse, in this country and in this time, for the spread of a deadly new epidemic. For this was a time in which the United States boasted the world’s most sophisticated medicine and the world’s most extensive public health system, geared to eliminate such pestilence from our national life. When the virus appeared, the world’s richest nation housed the most lavishly-financed scientific research establishments – both inside the vast governmental health bureaucracy and in other institutions – to investigate new diseases and quickly bring them under control. And making sure that government researchers and public health agencies did their jobs were the world’s most unfettered and aggressive media, the public’s watchdogs. Beyond that, the group most affected by the epidemic, the gay community, had by then built a substantial political infrastructure, particularly in cities where the disease struck first and most virulently. Leaders were in place to monitor the gay community’s health and survival interests.

      But from 1980, when the first isolated gay men began falling ill from strange and exotic ailments, nearly five years passed before all these institutions – medicine, public health, the federal and private scientific research establishments, the mass media, and the gay community’s leadership – mobilized the way they should in a time of threat. The story of these first five years of AIDS in America is a drama of national failure, played out against a backdrop of needless death.

     People died while Reagan administration officials ignored pleas from government scientists and did not allocate adequate funding for AIDS research until the epidemic had already spread throughout the country. People died while scientists did not at first devote appropriate attention to the epidemic because they perceived little prestige to be gained in studying a homosexual affliction. Even after this denial faded, people died while some scientists, most notably those in the employ of the United States government, competed rather than collaborated in international research efforts, and so diverted attention and energy away from the central struggle against the disease itself. People died while public health authorities and the political leaders who guided them refused to take the tough measures necessary to curb the epidemic’s spread, opting for political expediency over the public health. And people died while gay community leaders played politics with the disease, putting political dogma ahead of the preservation of human life.

      People died and nobody paid attention because the mass media did not like covering stories about homosexuals and was especially skittish about stories that involved gay sexuality. Newspapers and television largely avoided discussion of the disease until the death toll was too high to ignore and the casualties were no longer just the outcasts. Without the media to fulfill its role as public guardian, everyone else was left to deal – and not deal – with AIDS as they saw fit.

      In those years, the federal government viewed AIDS as a budget problem, local public health officials saw it as a political problem, gay leaders considered AIDS a public relations problem, and the news media regarded it as a homosexual problem that wouldn’t interest anybody else. Consequently, few confronted AIDS for what it was – a profoundly threatening medical crisis.

     Fighting against this institutional indifference were a handful of heroes from disparate callings. Isolated teams of scientists in research centers in America and Europe risked their reputations and often their jobs to pioneer early research on AIDS. There were doctors and nurses who went far beyond the call of duty to care for its victims. Some public health officials struggled valiantly to have the epidemic addressed in earnest. A handful of gay leaders withstood vilification to argue forcefully for a sane community response to the epidemic and to lobby for the funds that provided the first breakthroughs in research. And there were many victims of the epidemic who fought rejection, fear, isolation, and their own deadly prognoses to make people understand and to make people care.

      Because of their efforts, the story of politics, people, and the AIDS epidemic is, ultimately, a tale of courage as well as cowardice, compassion as well as bigotry, inspiration as well as venality, and redemption as well as despair.  It is a tale that bears telling so that it will never happen again, to any people anywhere.”

Randy Stilts, pictured above, was the first openly-gay reporter for the San Francisco Chronicle. In 1985, he found out that he had was HIV-positive, and in 1992, he contracted pneumocystis carinii pneumonia. He passed away on February 17, 1994.

References:

Dred Scott v. Sandford, 60 U.S. 393 (1856)   –  https://supreme.justia.com/cases/federal/us/60/393/

Randy Stilts, AND THE BAND PLAYED ON: Politics, People, and the AIDS Epidemic, St. Martin’s Griffin, New York, 1987.

Laura Green, “Negative Racial Stereotypes and Their Effect on Attitudes Toward African-Americans,” Virginia Commonwealth University.  Referenced at:  https://www.ferris.edu/HTMLS/news/jimcrow/links/essays/vcu.htm

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