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Constitutional Law Fall 2007 Overview

Organized by Daniel Sileo

Outline:

I. Dr. Farris Forum


A. Constitutional Questions

B. Quiz Questions

C. Senate testimony

I. Dr. Farris Forum


A. Constitutional Questions

Question from DAVID CROSS:


I noticed as I was reading the Constitution that some of the later amendments have clauses which are the
same. One of these clauses basically requires the amendment to be ratified within 7 years and the other I
noticed gives power to Congress to enforce the amendment. Why do quite a few amendments share these
clauses? The time period amendment I have no clue as to its reason. The power to enforce clauses just
seems unneccessary since if they were adopted I would think Congress would have the authority to enforce
the amendment if it were passed even without this clause.

Answer from DR. FARRIS:


David, these clauses are not self-evident but have a real purpose and meaning.

1. Clauses which give Congress the power to enforce a provision.


The Constitution grants power or restricts power. A provision that bans same sex marriage does not give
Congress the automatic authority to enforce that provision, for example. If that "congress has the power to
enforce" clause is missing, then a federal marriage amendment would only serve as a rule that limits all
government. It would not give Congress power to enforce the provision. I actually opposed measures by
Senator Brownback who wanted to add a congressional enforcement clause to a federal marriage
amendment.

Amendments without such a clause enact a constitutional rule without shifting the power between the
Congress and the states. Amendments with such a clause enact a constitutional rule AND ALSO shift power
between the Congress and the states.

Thus, it is inaccurate to say that all constitutional amendments add to federal power. Only those with these
enforcing clauses have that result.
2. Deadlines for ratification
The Bill of Rights had no deadline for ratification. One of the original bill of rights provisions was ratified in
1992 after being proposed in 1789. (This is the 27th Amendment.) It became usual practice to put a
deadline for ratification so that amendments would not linger indefinitely. Some of the deadlines are in the
text of the amendment. Some are in the preamble and resolving clauses. The Equal Rights Amendment put
the deadline in the resolving clauses. Then, as that deadline was about to come, the feminists got Congress
to give them another two and a half years to gain ratification.

This was one of my first major constitutional cases. I represented four Washington state legislators in a
challenge to the extension period. A federal district judge ruled in our favor. Then it was taken to the
Supreme Court. While pending in the Supreme Court, the second deadline passed without gaining enough
ratifications. The Supreme Court ruled that the deadline passing made the case moot and vacated the lower
court decision.

I believe that every proposed constitutional amendment will contain some form of the seven year deadline
from this point forward.

Question from STEPHANIE FERGUSON:


“In the case of Jose Ernesto Medellin, does the President have a point that he did not receive a "fair" trial
because he is a Mexican national and not a US citizen? What I had always heard was that if someone from
another country had committed a crime on our soil, they had to have the extradition of their own government.
Whether or not that is true is part of what I am asking. If it is true that he cannot be legally put to death, since
the President has the right of pardon, did he have to involve the international law statutes, which by no
means override our own Constitution? Or does the real choice lie with my state? This seems to be a messy
case since 1) he is a Mexican national, 2) he DID commit murder on our soil, 3) my state abided by our own
constitution, and 4) the President made a serious mistake by invoking international law.”

Answer from DR. FARRIS:


“Stephanie, this case will be incredibly important to the development of the role of international law in its
relationship to domestic law. I am studying the law of treaties right now with the University of London--my
finals are in two weeks. Under the Vienna Convention on Treaties, a nation may not excuse its violation of
international law by claiming that it has acted in compliance with domestic law. And so, if we indeed have a
treaty that required us to inform the defendant that he had the right to access to the Mexican consulate and
we failed to do that, we are in violation of international law. And this is what the ICJ (the so-called World
Court--a branch of the UN) has ruled. However, this only settles the matter under international law. The
second question remains, will we allow international law to govern us? I hope that the answer of the
Supreme Court will be "no" but I am dubious. I fear they will side with the internationalists.”

Follow-up question from STEPHANIE FERGUSON:


“Wow... I'd been following this, but I didn't think it was THAT substantial...So even though we were in
violation with international law, it should not override our own domestic law? We are our own sovereign
nation and should have our own laws-- but was denying Medellin the "right" of a Mexican consulate denying
his own rights as a Mexican citizen? From what I can discern, if he willingly committed a crime on our side of
the border, he should be subject to our laws. Despite what critics can throw at it, he DID know what he was
doing and should be put to justice. I, too, fear for the future concerning international law. I shudder when I
hear many of the Democratic-- and a fair number of the Republican-- candidates speak of invoking
international law. But unless we do something, it seems to be inevitable. Worldwide socialism is too attractive
to people who don't-- or won't -- understand.”

Follow-up answer from DR. FARRIS:


“The answer to your question is complex. Under the Supremacy Clause (Article VI) of the Constitution, a
ratified treaty is part of the highest law of the land. Thus, the treaty would be considered to have been
adopted as a part of the domestic law of the United States when it was ratified by the Senate. Lurking in the
background is whether a treaty can be adopted which invades the powers of the states. Again, I fear that the
answer will be yes. If truth and justice were to prevail, the answer would be “no.” The thing our nation needs
to do is to stop entering into these kinds of treaties and to repudiate the ones we have previously joined if
they violate our sovereignty.”

Question from ELIZABETH TIGHE:


#1. Could you please explain Clause 12, Sect. 8, of Article 1 that states, “...raise and support Armies, but no
appropriation of money to that use shall be for a longer term than 2 years.” Does that mean that any money
set aside for the purpose of war must be reapplied for after two years?

#2. On what legal grounds are homosexuals seeking the right to marry? Is there a constitutional argument or
is it just some judge deciding that it is ok? And if it does end up sticking in MA, does Article IV, Section 1 and
amendment XIV also uphold the right to marry in other states as well?

#3. By not allowing school prayer - doesn't that violate a student's right to the free exercise of religion? (Just
an aside- that is part of the reason we are homeschooling our children.)

Answer from DR. FARRIS:


#1. This Clause simply requires a two-year budget cycle. The Founders didn't want long wars built into the
budgetary process. They wanted to review the war from time to time to make sure the President wasn't
abusing this power.

#2. Many of the same-sex marriage cases have been brought on state constitutional grounds. The newer
cases are grounded in federal law and are based upon Lawrence v. Texas that is in your book. You should
read it now if you want to get a deeper understanding. Basically it is an equal protection/due process
argument that it is improper to discriminate against homosexuals.

#3. Public schools cannot stop individual students from praying--at least not legally. They do it, but they get
sued and the officials lose. The school prayer decisions are about group prayer--not an individual bowing his
head silently before a test, or over his lunch, etc. When they try to ban individual prayer it is a violation of
free exercise and the schools lose such cases.

Question from JOSIAH HINTERBERGER:


#1. You talk about the definition of "Commerce" in chapter 13; how is passenger aircraft use "commerce", but
passenger car use not?

#2. Do you agree with the United States v. Curtiss-Wright Export Co. ruling?

Answer from DR. FARRIS:


#1. Airplane traffic is so dominated by people selling seats on airplanes that it is pretty clearly commerce
and interstate. What would be needed on the car side of things would be the roads would have to be
dominated by taxis and commercial trucks to be commerce--and the amount of driving would have to be
dominated by interstate driving. Most travel is personal not for sale. Most trips are local not interstate.

#2. I do agree with Curtiss-Wright. I think the President does have more leeway in establishing the details of
policies in foreign affairs, but he still cannot legislate. I view his decision as involving very little discretion but
much more implementation of a clear congressional policy. If I did more historical research to determine how
the first four presidents handled such things I would be more confident of my position.
The reason I take the view I do about air travel is that for safety reasons it is only possible of having one
level of government control the situation. Thus, we have to look to see, which is closer to original intent--
regulation of this kind of travel by the national government so that the travel rules are uniform or regulation
by the states so that each state may establish its own rules. What is not possible is two sets of travel rules--
one set for local airplanes and another for long-distance airplanes. They occupy the same air space and
must be regulated uniformly. The core idea of the commerce clause was uniform regulation of interstate
shipping and the like.

Question from LAUREN BAILEY:


A new, small airport will likely be built about 1/2 mile from our home. Eminent domain will be taking our
neighboring farmers' land. Is this unconstitutional/ "ultra vires"? If so, is there a way we can fight it?

Answer from DR. FARRIS:


Your question calls for actual legal advice for your family. I can't do that for many reasons--not the least of
which is that I am not licensed in your state. It is probably worth a visit to a lawyer specializing in land use
issues to see what your options are.

Having said that, let me tell you a few things about the constitutionality of eminent domain procedures.

1. You can read the latest Supreme Court decisions on the subject in your book--chapters 38 and 39.

2. It is perfectly constitutional for governments to condemn private property for public use provided that they
pay fair market value for the property. Juries ultimately determine fair market value if the dispute over value
cannot be resolved.

3. There are many other legal possibilities that can be used to fight such decisions. There is a possibility of
arguing that the airport will actually invade your property in flight and that they must by the airspace rights
over your property. If enough people did this then projects may become unfeasible. THIS IS A THEORY. I
have no idea if this is valid in your state and will basically be a state law issue. You really should get a
lawyer if you don't want an airport as a neighbor.

Follow-up question from JOSIAH HINTERBERGER:


It's constitutional to take private property for public use? I thought that the founders viewed the right to own
property as a natural right. I believe it was Samuel Adams who said, "Among the natural rights of the
colonists are these: First a right to life, secondly to liberty, and thirdly to property; together with the right to
defend them in the best manner they can." So I guess my question is; am I mistaken about the founders'
views, or, if I am not, why didn't the Constitution more fully protect the right to own property?

Follow-up answer from DR. FARRIS:


Read the 5th Amendment. It is clear. If they take your property for public use they must provide just
compensation.

Question from JOSIAH HINTERBERGER:


#1. I believe you talked about NAFTA being adopted in an unconstitutional manner in Chapter 6--how would
that piece of legislation be revoked on that basis? Does the Supreme Court have to power to declare
NAFTA unconstitutional until adopted in the way it should be, or would someone have to file suit first?

#2. In Chapter 12, the subject is about the amount of power that the President has to "fill in the blanks" so to
speak--following the principle of Original Intent, how much power do you believe the President should have
in this area under the Constitution?
Answer from DR. FARRIS:
#1. The Supreme Court would need a real case to decide whether NAFTA was improper or not. They do not
do advisory opinions.

#2. The President should have power to implement decisions of Congress but not have the power to make
policy decisions in the name of implementation. The vast majority of regulations and executive orders would
be unconstitutional under my theory.

Question from DAVID CROSS:


Dr. Farris, in one of your lectures about the power of the president, you used an example relating to the
Washington Monument. You said that since the Monument is owned by the federal government, the
president can constitutionally issue orders controlling it. I agree with the constitutionality of that but I have a
question. In your example, the president said no knives where allowed in the Washington Monument.
The second amendment clearly gives us the right to bear arms. I'll just assume, for my question, that knives
are included in the definition of arms. Now, it would seem banning knives from federal property could violate
the Second Amendment. I recognize that government property could be like private property in that the
owners can decide to regulate visitors and their actions. However, I think prayer and other religious
activities, by private citizens, are allowed on federal property. Maybe not? In what way would bearing arms
be different? Also, you said the president could create a dress code for government employees and control
their work behavior in other ways. With that power, could the president forbid them to pray or bring a firearm
to work? I'm guessing that it is the same situation as with private employers-an employer can restrict
anything as long as it isn't specifically protected by law.

Answer from DR. FARRIS:


Your rights are not absolute. They may be subject to a number of restrictions. For example, your right to pray
does not entitle you to come into the Oval Office and pray whenever you want. You have to be invited to
come there. (I have been in the Oval Office a few times and on one occasion prayed, but I was in a small
circle holding hands standing next to the President.) The limitation on your right to pray in the Oval Office is
not a violation of your First Amendment rights. Also, you cannot take a gun into the White House. This is no
limitation on your Second Amendment rights. The government, like any property owner, can reasonably limit
the exercise of any right on its property provided that there is a compelling justification for doing so. (Only the
government must present a compelling justification. Private owners can make whatever rules they want.)
To constitute a compelling governmental interest, issues like public safety are near the top of the list.
Accordingly, it is easier for the government to justify limiting possession of arms on government property
than it is to limit speech or prayer on government property. Accordingly, you do not have a Second
Amendment right to possess arms at the Washington Monument, whether those arms are militia related or
not. The basic idea of the Second Amendment is the right to own a gun and to bear it in places you can hunt,
etc. At the top of the list is the right to have a gun on your own property.

Question from JOSHUA MAGEE:


Last chat you gave these as examples of necessary religious exemptions:

1. If the landmark ordinance stops our church from expanding, we cannot freely exercise our religion by
serving all the people in our congregation...we need an exemption so we control our building size.
2. Patrick Henry College believes that homosexual behavior is sinful, we need a religious exemption from the
law that requires us to hire homosexuals.
3. Even though it is generally illegal to serve alcohol to minors, our church uses real wine in communion and
we need to serve it to minors to obey God about the role of. communion
4. Our church doesn't believe in female pastors, we need a religious exemption from the law that requires no
sex discrimination in employment.
5. We believe that God requires us to teach our own children, therefore we need an exemption from the law
that limits homeschooling to certified teachers.
What I have to ask is:

Concerning #1: What I really think about a church being prohibited from expanding on its own property is that
this is a violation of Amendment V property rights. I think the zoning laws are fine, if the city would pay the
church because they’re practically losing their building. Even if the RFRA is unconstitutional (or if the Court
says it is) couldn’t the church still challenge the laws under of the “just compensation” clause?

Concerning #2: Can a law really require you to hire homosexuals? It could ban discrimination on the basis of
sexual orientation, but couldn’t you just hire someone you liked? I mean, you wouldn’t have to say to the one
you didn’t want to hire, “You can’t work here because you’re homosexual.” If you found someone else who
could do the job, there’s at least a fifty-fifty chance the homosexual wouldn’t be hired anyway. So basically,
what I’m asking is, are there any laws that truly force you to hire homosexuals?

Concerning #3: I think the prohibition was unconstitutional because of the religious aspect you mention. But I
believe it would be wrong to serve alcohol to a small child because the child couldn’t understand what
alcohol does. I believe the government should outlaw serving alcohol to minors, or at least minors under
about eight or ten or so. Would do you think about this?

Concerning #4: Just like in #2, couldn’t you just hire a pastor "who happens to be a man", rather than refuse
to hire someone "because she's a woman"?

Concerning #5: Similar to #3, if it were proven that children did not get a decent education if their teachers
were not certified, then wouldn’t the certified teacher law be necessary, despite claims of “freedom to teach
our own children”? (Of course it isn’t true that children can’t get a decent education without certified teachers.
I can write OK, can’t I? And my teachers aren't certified.)

Answer from DR. FARRIS:


There is no quick and easy answer to each of these scenarios. Religious freedom is still necessary in this
country. I will answer each one in order.

JOSHUA’S QUOTE: “Concerning #1: What I really think about a church being prohibited from expanding on
its own property is that this is a violation of Amendment V property rights. I think the zoning laws are fine, if
the city would pay the church because they’re practically losing their building. Even if the RFRA is
unconstitutional (or if the Court says it is) couldn’t the church still challenge the laws under of the ‘just
compensation’ clause?”

The ruling in Boerne and Smith is that churches must obey the same property rules as everyone else.
Zoning laws limit businesses and private homes all the time. Such restrictions are not a violation of property
rights according to the courts. A suit under "just compensation" theories would not work. The issue is
whether or not a church should have more freedom than a Wal-Mart. The only way that this will be
accomplished is through the free exercise of religion.

JOSHUA’S QUOTE: “Concerning #2: Can a law really require you to hire homosexuals? It could ban
discrimination on the basis of sexual orientation, but couldn’t you just hire someone you liked? I mean, you
wouldn’t have to say to the one you didn’t want to hire, ‘You can’t work here because you’re homosexual.’ If
you found someone else who could do the job, there’s at least a fifty-fifty chance the homosexual wouldn’t be
hired anyway. So basically, what I’m asking is, are there any laws that truly force you to hire homosexuals?”

What you are saying is that churches will be ok so long as we don't tell applicants for jobs the whole truth.
Here are the problems with this approach: If the church asks the applicant if they are a homosexual alarm
bells will go off. The Equal Employment Opportunity Commission will be contacted immediately and the
church will be in trouble just for asking the question. If they don't ask, how will they know. And if they find
out later and want to fire the person, what will they say then? I was in court (as an observor) once when a
church was being sued in San Francisco for firing a musician who worked for the church. The church found
out that he was a homosexual and urged him to repent. He refused and they fired him. According to your
theory, they should have played a clever game with him and said that his music was bad. But what if it
wasn't bad? Should the church lie? Should the church refuse to confront his sin? Being deceitful will not
work either morally or legally.

JOSHUA’S QUOTE: “Concerning #3: I think the prohibition was unconstitutional because of the religious
aspect you mention. But I believe it would be wrong to serve alcohol to a small child because the child
couldn’t understand what alcohol does. I believe the government should outlaw serving alcohol to minors, or
at least minors under about eight or ten or so. Would do you think about this?”

First, I do not drink alcohol at all. My church serves grape juice. I wish that states would raise the drinking
age to 85 or something (this may be an exaggeration). But, to say that a child will be adversely affected by
the amount of alcohol in a communion cup is stretching the point to the outer limits. Children also get a tiny
amount of alcohol by just using mouthwash or by putting a thermometer under their tongue that was just
dipped in alcohol for sterilization. The issue is who decides what is right here. Should you decide for
everyone? Should the government decide? Should churches decide? Should parents decide? Since it is not
scientifically valid to say that children would be seriously harmed by the amount of alcohol in a communion
cup, then I think the decision should be made by parents and churches, not outsiders and not the
government. But, the only reason that the church or parents would have the ability to override the decision
of the government is if they have a right to do so--and the only relevant right is the free exercise of religion.

JOSHUA’S QUOTE: Concerning #4: Just like in #2, couldn’t you just hire a pastor "who happens to be a
man", rather than refuse to hire someone "because she's a woman"?

Just like #2 I think that churches need to be upfront about this. Moreover, it would be very easy to prove a
case even if the church was clever. A woman applies for the job. She doesn't get an interview. She knows
that this church doesn't hire men pastors from reading their doctrinal teaching about women teaching men.
She files a lawsuit and schedules the elder board for a deposition. The first question is: Do you believe that
it is unscriptural to hire a woman as a pastor? So, what is the elder supposed to do? Lie? There is no
honorable substitute for the protection of liberty.
JOSHUA’S QUOTE: “Concerning #5: Similar to #3, if it were proven that children did not get a decent
education if their teachers were not certified, then wouldn’t the certified teacher law be necessary, despite
claims of ‘freedom to teach our own children’? (Of course it isn’t true that children can’t get a decent
education without certified teachers. I can write OK, can’t I? And my teachers aren't certified.)”

The government may set reasonable standards for the education of children. If the government wants to
require teacher certification, it can. You can prove that the education by such a person is unnecessary, but
absent a constitutional right, you have no basis for overturning a government rule. Example, you cannot
overturn the speed limit by arguing that it is not necessary to drive 55, and that you can drive safely at 80.
You lose when your argument is based on what is necessary. You must have a constitutional right to be able
to attack the application of a government law. In homeschooling, there are two relevant rights--parental
rights and religious liberty. You will read a case exactly like the fact pattern I have given you here later in this
book. (Michigan v. DeJonge). However, there was another case decided the same day as DeJonge. In
DeJonge the parents won the liberty to homeschool based on religious liberty plus parental rights. In the
second case, a secular homeschool family, lost their constitutional claim based on parental rights alone. (I
argued both cases). Both parents should have won. But in real life religious liberty made the difference.

Follow-up question from JOSHUA MAGEE:


#1. My next thought about the hiring "dilemma" is that I would hardly consider it "discrimination" to refuse to
hire homosexuals. I mean in the same sense that refusing to hire black people is discrimination. It is people's
own choice whether or not to be homosexual as much as it is my coice whether or not to, say, wear a 100-
foot tall hat or something.

#2. The women as pastors argument, I can understand, because women can't change their gender quite as
easily, heh, heh. Now what would you say about a church if they said that only women could be pastors?
Should they be given the same rights as churches where only men can be pastors?

#3. And as for the children-- if we said minors could drink alcohol for religious purposes, wouldn't that open
the door to "religious" cocktail parties, etc.?
#4. It seems this religious freedom business could reach the extremes--if Muslim parents taught their children
that they should murder infidels, the children believed it, and the children blew up something, wouldn't the
parents be at fault (even if they wouldn't be guilty of a crime) for their children’s unacceptable acts? Shouldn't
the law prevent this kind of teaching from being taught, in order to preserve people's "life, liberty, and
property"? If this law would be unconstitutional, what would you think of adding an amendment, specifically
for this (assuming we could get past the "tolerant" Democrats and the Muslims)?

Follow-up answer from DR. FARRIS:


#1. While I fully agree with you that homosexuality is a (sinful) choice, if the law says that you cannot
discriminate on the basis of sexual orientation then that is the law. What you are saying is that it shouldn't be
in the law. And, of course, I agree. But what do we do when we lose that battle and the homosexuals are at
the doors of our churches demanding the right to apply for jobs? We need constitutional protection.

#2. Of course I would support the right of a church to hire only women pastors. Religious freedom does not
mean that religions that agree with me should be protected. All religions should be protected. Now, don't ask
me to attend such a wacky church. But I support their legal right to hire whom they wish.

#3. Children and alcohol. Unlike communion, it is quite easy to prove that actual alcohol consumption of
anything more than a tiny amount is sufficiently harmful for children to stop it regardless of religious claims.
This is what the compelling interest test is all about. If there is a compelling interest (a goal of the highest
order) then the government may override religious freedom claims. It is hard to see why there is a
compelling governmental interest in stopping a 15 year old from having less than an ounce of wine in
communion. It is easy to see why we ban religious cocktail parties where the amounts consumed would
have a clear effect on the child. Moreover, there is not the longstanding tradition of religious cocktail parties
like there is with communion. Someone who invents such religious cocktail parties for minors will find
themselves in jail and with no hope of winning. The law does have some common sense--at least at times.

#4. Anyone who incites another person to violent acts can be punished under our laws. This is where the
compelling interest test comes in. There is clearly a compelling interest in stopping incitements to violence.
If the teaching was merely theoretical--someday at the end of the age there will be a religious war and we
must be ready to fight for Allah--that is different. And it is not that much different than some Christian views
of the end times. But when someone is saying that they should take up arms right now and kill--they can and
should be punished without regard for a religious defense.

The way this would work under original intent is this:

If the person violates the civil law that is a part of the moral law of God, then there is no religious freedom
defense. However, if the person is in violation of a mere government regulatory scheme that is not required
by the moral law of God, they should be allowed a religious exemption from such laws if they are truly
burdened by the application of the law. Thus, murder, theft, violence, etc. is never justified in the name of
religion. The regulatory state (who you can hire, etc.) will normally not be allowed to override sincere
religious convictions.

Question from ERIC TURNBAUGH:


Dr. Farris, I noticed that at the beginning of the court cases when it lists the judges there is at least one "J"
after them, sometimes two. I know that they're first initials are all not "J." What do these mean?

Student input from DANIEL SILEO and ALICIA McCLURG:


CJ = Chief Justice
J = Justice (singular)
JJ = Justices (plural)
Answer from DR. FARRIS:
You guessed right.

Question from DAVID CROSS:


Dr. Farris, I've read the chapter on original intent, listened to the lecture, etc and I think I understand and
agree with what you said. However, it almost seems that the way you mean original intent doesn't have the
capacity to address some problems. For instance, one of the examples you used was-who gets to decide
where a child attends church-his parents or himself. I think the answer is clear from Scripture that the parent
has authority over the child and I think the founders would agree with that. However, I don't see how original
intent could determine the issue. In my mind what should be done is since the founders believed in the God
of the Bible and clearly alluded to that in the Declaration of Independence that the Bible could be viewed as
the founders source to determine justice. I believe that the biggest problem with the Constitution is the fact
that it doesn't directly refer to God or the Bible as being the "Higher Law" of the land above the Constitution,
because with the amendment process our rights and liberties could be amended away. Don't we need
something above the Constitution that is true, just and unchangeable? I hope I'm making some sense. In
short I believe that since our founders relied on the Bible, the Bible can be used as sort of an interpretation
document as well like the Convention records. So, if you could help me understand this issue that would be
great. Hopefully, you can understand me it's a little complicated.

Answer from DR. FARRIS:


You are used to hearing that there are three spheres of jurisdiction in our lives: the church, the family, and the
state. All of these have a proper role. All need to be respected within their jurisdictional sphere. And the
government should stay out of the church and family by respecting their sphere of decision making. You
would recognize that a rule that would be appropriate in a church or a family would not be appropriate for a
government to enact.

I say all that to establish a comparison.


I have three spheres that I use for deciding legal and political issues: 1. What guides my own voting? 2.
What should guide a legislator's decision? 3. How should judges decide the meaning of the law?

Voting
In my own voting I am guided first and foremost by the standards of God. Deuteronomy 17:14- (through the
end of the chapter) sets out the standards for a king that I believe are applicable to political leaders in
general. One of these standards is that the king is not to turn from God's law to the right or left. To me this
means that candidates should be evaluated based on their fidelity to the principles I find in God's Word.
Candidates that favor abortion or gay rights always lose my vote on this basis. I can be as religious as I want
in this area--and so can everyone else. In voting, everyone (religious or not) is entitled to vote on the basis
of their own personal philosophy.

Legislating
Elected officials are entitled to take their own philosophy into their voting as well. If I were in the legislature
and was deciding the issue that you suggest (should children or parents be allowed to make decisions about
church attendance) I am always going to vote for the parents based on my understanding of God's Word and
our nation's history. There is nothing improper about doing that as a legislator. All legislators are entitled to
use their own philosophy in deciding such questions. When we MAKE law, we should be advocating that the
law reflect this moral approach. If we win enough votes in a fair process, then we will see our law reflect our
values.

Legal Decisions
I do not believe that ANY judge is entitled to use his own personal philosophy in making legal decisions.
Thus, a judge should never get to decide whether the Bible or the Koran or the latest opinion poll should
be laid on top of the Constitution and guide his interpretation and application of the law. A judge should
always ask the question, "What did these words mean to those who wrote and ratified the Constitution?"
If a judge were to ask that question about religious liberty (parents vs. children) there would be no doubt that
the correct answer would favor parents. The judge should reach that decision for historical reasons and
historical reasons alone. History is objective. Philosophy is subjective. And I do not believe in
subjective judges. Now, it just so happens that the history favors my philosophy bent because the people in
charge in the relevant period shared my fundamental convictions.

But, even in those rare cases where the history of the law would disagree with my philosophy, I still believe
that we should follow the historical meaning of the language of the text. If I don't like that historical meaning,
then I need to go to the legislative branch and get the law changed.

When we MAKE law, the Bible should be the guide of every Christian voter and legislator. But his success
will depend on convincing a majority to agree with the policy, even if they have a different reason for getting
to the same conclusion.

When we ENFORCE the law, the language of the law and its historical meaning should guide the judge.
In all spheres I am willing to give to those who disagree with me the same rights as I urge for myself. If I am
willing to use my own personal philosophy to guide judging, then I cannot complain when others do that to
me. But, since I faithfully take the side of historical meaning in judging--in good times and bad--then I can
argue that all judges should follow the rule of law and not inject their philosophy to achieve in court what they
could not achieve in the political process.

Follow-up question from DAVID CROSS:


Dr. Farris, I understand and agree with the principle that a judge should not use his beliefs to interpret the
law. What I am asking is since we use the views of the founders and what they meant in writing the
Constitution to interpret it, can't we argue that they're religious beliefs are important as well? For instance, in
parents/children rights, where ultimately do you find the reasoning for parents having authority over their
children? Didn't the founders find that in the Bible? I belief that all our decisions in life are ultimately
determined by our religious convictions. So if this is true, then couldn't it be argued that the religious beliefs
of the founders should be used to determine the meaning of the laws they enacted? In my mind, the greatest
problem with our Constitution is that the writers didn't include a direct reference to the authority of a "Higher
Law" that is above even the Constitution. I look at the Constitution and see the amendment process and
realize that even our freedoms can be amended away. However, if there is something higher than even the
Constitution that cannot be changed, namely God’s law, then judges has to rule by original intent and not any
way they want. Then, our rights cannot be eroded away in light of the rights God has given to all men.
Even though, it isn't explicitly in the Constitution, I believe it can be argued that the founders intended God's
law to be supreme. For instance, the Declaration of Independence states, "to which the Laws of Nature and
of Nature's God entitle them". The founders acknowledge here that their rights are not based in the laws of
men or are granted by man but are given by God. So the purpose of government is to protect these rights
and administer justice to wrongdoers. So with this reference, I believe that the founders intended our nation
to be held accountable to God himself. By itself, original intent is inadequate to protect our rights. The
Constitution can be amended beyond recognition and deny us our liberties. To be sure, the process will be
longer than the current trend of ignoring constitutional processes altogether but the end will be the same.
I would like to point out that without a belief in truth there is no reason to use original intent. Why should
today's judges who don't believe in right or wrong, judge impartially and fairly?

So in brief, I’m asking: Where is the foundation of original intent? If it rests in the laws of men it can be
overruled by today's procedures, constitutional or not, but if it rests in God's law, which the founders believed,
then it is the unbeatable protector of our rights.

Follow-up answer from DR. FARRIS:


These are very good questions. Let’s take the example of the right of parents to direct the religious
upbringing of a child as our example. Let's assume this legal question:
When the Constitution protects the free exercise of religion, does this give the government the authority to
prefer the religious decisions of a child over the decisions of a parent when there is conflict?

Original intent analysis would look at the blend of parental rights and religious freedom in 1791 to determine
the meaning of this Clause within this application. Thus, we would ask the question: How would the founders
have answered this question in 1791? We would look at all relevant sources to determine the answer. But it
would basically boil down to looking at the legal sources in place at the time.

These legal sources would have been created by the Christian worldview. In other words, the political
processes of the time would have given reliable Christian answers to such questions. But our inquiry today
should be focused on WHAT they believed was the answer to the legal question rather than WHY they
believed what they believed.

The liberals like to argue from the Spirit of the founders. When they do this, they point to enlightenment
philosophers and Thomas Paine and others to give us answers to the meaning of the Constitution. And
there is enough in the writings of the founders to give them some basis for going in this direction. However, a
more honest look would show the even deeper influence of Christianity. But, the question of why they
believed the way they believed is almost always going to boil down to being a subjective matter.

We must ask objective questions to get objective answers. What did they believe about the relationship of
parents and children and the state? That is an objective question. Why did they believe this? That is a
subjective question. There is a saying, "Everyone is entitled to their own opinion, but everyone is not entitled
to their own facts." In law, we need to focus on facts--historical and current facts. In politics, we can and
should focus on worldview and opinion.

The Founders' worldview was consonant with Christianity in the vast majority of cases. When we rely on the
state of the law at the time to understand the meaning of the Constitution, we get the benefit of that
worldview. But we do so because of objective facts about the laws in place and the objective meaning of
words.

This is subtle and a very advanced discussion. You are remarkable for even asking the right questions. And
you clearly understand this deeply. The Bible guided them in the way they made their laws. When we
interpret the Constitution we should be trying to understand the meaning of words as used at the time. We
will look to these Bible-inspired laws to understand the words. We get the benefit of the Bible, without having
to proclaim that the Bible is the foundation of the Constitution. There is another very important reason for
doing it this way.
Not everyone agrees on the meaning of the Bible. Jean Calvin and John Knox, for example, believed that
the Bible required the magistrate to exercise the power to execute heretics. Thomas Helwys, John Leland,
and James Madison believed that the Bible taught religious liberty for all.

If we are to say that the Bible controls the meaning of the Constitution, are we talking about Calvin and
Knox's interpretation or Helwys, Leland, and Madison? To Helwys a Christian nation allowed liberty for all.
For Calvin, a Christian nation had a law requiring everyone to be a Christian under penalty of punishment.
These were not small disagreements about the Bible. The differences and the consequences were
enormous. The founders negotiated through all of this, picking the best parts of Calvin, and rejecting his
excesses, the best parts of Helwys, and rejecting others, etc. The result was a subtle blend that is really
tough to put a single theological label on. Moreover, we are trying to understand what a group of people
thought and why and not single individuals. The only reliable way to work through all this is to simply look at
what they did and the laws they made.

Finally, not all their political answers were right. Oh how I wish the founders would have banned slavery. We
can read the Word of God and come to different political answers than they did. The Bible should always be
our final guide in helping us reach our own personal political opinions. But, if we say that the Bible as they
understood it is the final answer on all matters, we would still have slavery. Of course, the Bible was not
wrong--because the Bible is incapable of error. Man's understanding of the Bible can be wrong--and on
slavery, man's understanding was wrong for far too long. The Bible should determine my own politics. The
Constitution should determine our judicial decision-making. The ACTS and LAWS of the Founders should
control the courts' understanding of the words in the Constitution. We benefit from the founder's motives; but
our courts should make their decisions on the objective standards of the founders' acts and laws.

Follow-up question from DAVID CROSS:


First, do you think there is anything that could be pointed to as being a "Higher Law" then the Constitution?
Like a group of principles that all the founders agreed on. For instance, in a series of books I have read,
according to the author there are two fundamental rules that should be used to judge law.

These principles are:


1. Do all you have agreed to do.
2. Do not encroach on others.

He also gives evidence of the founders believing and supporting these principles. He calls it common law.
It makes sense that we should try to state in the law that God's law is supreme. In the end government is
responsible to God since He sets up and overthrows government in the first place. However, shouldn't we try
to do that in the law as well? If the Constitution is amendable then it can radically change even to the point of
revoking our God given rights. Doesn't it seem to be needful to have something that is unchangeable?
If that is the case is there anything that we can point to as being unalterable? Is there anything from the
founders that can be viewed as a binding unbreakable rule?

Couldn't the founders have put something in the Constitution to the effect of “the rights herein granted are
ultimately from God and can never be taken away or detracted from"? If so why didn't they do it? Could it
still be done?

Follow-up answer from DR. FARRIS:


There are no documents that all the founders agreed to. Even the Constitution garnered some dissents.
The only viable candidates for higher law are:

1. The Bible and


2. The Constitution

There is nothing we can expect to preserve our liberties except our own diligence and the mercy of God.
Everything can be repealed. Everything. And we are precariously close to repealing many foundational
principles. You are right in arguing that rights that are God-given SHOULD never be removed. It would be a
violation of moral law to do so. However, under our legal system the votes of representatives control and
anything is theoretically possible. There is a doctrine of international law that might interest you. Nations
may not enact laws which violate the rules of jus cogens--compelling law or fundamental law. But, once
again, the issue is who decides what is compelling or fundamental.

A legal system has two components--process and substance. Your arguments have a lot of merit on the
substance side. You need to grapple with the process side of things.

Suppose there is an amendment that says: The Bill of Rights may never be repealed. How do you get
around that? Well, you repeal that amendment first and then repeal the Bill of Rights. Or, what if they are
cleverer and say, "Neither the Bill of Rights nor this Amendment may ever be repealed"? Two alternatives--
you can pass new amendments to "clarify" the Bill of Rights that purport to honor them but in fact undermine
them. Or, if things are really awful, they simply throw out the entire Constitution and replace it. If there is
enough political power in place to repeal the Bill of Rights there is also enough political power to repeal the
entire Constitution. Why do you think that the founders believed that eternal vigilance is the price of liberty? If
they could have guaranteed liberty with some good wording of amendments, I promise you that they would
have done so.

Question from ELIZABETH TIGHE:


#1. Could you please explain Clause 12, Sect. 8, of Article 1 that states: ”…raise and support Armies, but no
appropriation of money to that use shall be for a longer term than 2 years.” Does that mean that any money
set aside for the purpose of war must be reapplied for after two years?

#2. On what legal grounds are homosexuals seeking the right to marry? Is there a constitutional argument or
is it just some judge deciding that it is ok? And if it does end up sticking in MA, does Article IV, Section 1 and
amendment XIV also uphold the right to marry in other states as well?

#3. By not allowing school prayer - doesn't that violate a student's right to the free exercise of religion?

Answer from DR. FARRIS:


#1. This Clause simply requires a two-year budget cycle. The Founders didn't want long wars built into the
budgetary process. They wanted to review the war from time to time to make sure the President wasn't
abusing this power.

#2. Many of the same-sex marriage cases have been brought on state constitutional grounds. The newer
cases are grounded in federal law and are based upon Lawrence v. Texas that is in your book. You should
read it now if you want to get a deeper understanding. Basically it is an equal protection/due process
argument that it is improper to discriminate against homosexuals.

#3. Public schools cannot stop individual students from praying--at least not legally. They do it, but they get
sued and the officials lose. The school prayer decisions are about group prayer--not an individual bowing his
head silently before a test, or over his lunch, etc. When they try to ban individual prayer it is a violation of
free exercise and the schools lose such cases.

Question from ALICIA McCLURG:


I've heard the term "freedom of association" in several places. The phrase seems to mean "I have the right to
be with whoever I want to be with, and I also have the right not to be with whoever I don't want to be with." Is
this accurate, and is it found in the Constitution, or somewhere else? I can't seem to see it in the
Constitution.

Answer from DR. FARRIS:


The freedom of association is based on the right to peaceably assemble in the First Amendment. It is the
right to gather together for peaceable purposes.

Question from SARAH GUTIERREZ:


Dr. Farris, in the audio CD, lecture 19, you said that the Enlightenment had very little effect on religious
liberty in America. However I read (in a 9th grade Mennonite history textbook) that the Founding Fathers
were so impressed by Enlightenment philosopher John Locke that they copied some of his ideas almost
word for word in the Declaration of Independence and provided a Bill of Rights partly due to his influence.
How far is this true?

Answer from DR. FARRIS:


The textbook you read is simply wrong. It is wrong about Locke and it is wrong about the founders. I have
written a 491 page book on this subject that was just released in July. It is called From Tyndale to Madison:
How the Death of an English Martyr Led to the American Bill of Rights. The fight for religious liberty was
conducted by Christians who believed that true faith came from a personal relationship with Jesus. Those
who argued for religious persecution were also professing Christians. But they believed that Christianity
came through ceremonies. To give you a brief overview of the book I have pasted the final chapter of the
book here. This is my manuscript form, so the final edits may differ slightly. I would urge you to get this book
if you want to learn the full history of religious liberty in America.
“Lessons of Liberty”

The United States State Department maintains a website that has the goal of teaching the principles of
democracy to the entire world. What does our State Department say about the origin of the Bill of Rights?

“Two historic declarations of human rights were approved in the summer and fall of 1789, less than a
month apart -- France's Declaration of the Rights of Man and the Citizen on August 26, and
America's Bill of Rights on September 25. Both drew upon the doctrine of natural rights and other
philosophical wellsprings of the Enlightenment at a time when French and American attitudes were
close and compatible.”

This statement reflects what amounts to the “party line” among the modern academic elite. The assertion
that the Enlightenment is responsible for the American Bill of Rights may be common, but it is devoid of any
meaningful connection to the actual historical account.

History reveals a different story.

The eyes of history see William Tyndale in his study at Little Sodbury Manor reading the Word of God. He
reads Acts 17:11, which says—in the words of Tyndale’s translation: “These were the noblest of byrth
amonge them of Thessolonia which receaved the Word with all dylygence of mynde / and searched the
Scriptures dayly whether those thynges were even so.” Based on this, and many other passages from the
Word of God Tyndale became convinced that the Scripture in English needed to be available to every person
in England from the King to the ploughboy. He repeatedly asserted the central idea of religious liberty—
private judgment—in his writings and actions. In the margin notes of his New Testament, Tyndale wrote:
“Searche the scriptures for by them may ye trye all doctrine.” Believers who measure the official doctrines of
the established church against the plumbline of Scripture are the inherent opponents of religious oppression.
Tyndale’s believes led him to action and he paid with his life.

History sees Robert Barnes, armed with Tyndale’s translation of the Word of God, defy the ostentatiously
powerful Cardinal Wolsley only to be told to “abjure or burn.” Barnes read 1 Corinthians 1 which taught him
that God will “destroy the wisdom of the wise.” From this he concluded that the true nature of God’s church
was spiritual and universal. He said it this way:

“Whether they bee Jew or Greeke, kyng or subject, carter or Cardinall, butcher or Byshop,
tancardbearer or cannelrater, free or bounde, frier or fidler, Monke or miller: if they believe in
Christes word, and sticke fast to his blessed promises, and trust onely in the merits of his blessed
bloud, they be the holy Church of God, yea and the very true church afore God. And you with all your
spiritual tokens, and with all your exterior cleanness, remaine in your filthynes of sinne . . . the
Church is a spiritual thing, and no exterior thing . . . the holy Church is the congregation of faithful
men wheresoever they be in the world.”

Barnes’ belief that the church was spiritual and universal, not political and national, was utterly incompatible
with the theories of repression that are inherent in a nationally established church. Eventually, Queen
Elizabeth took his life for his contributions to the theory of liberty.

The Kent Coventiclers (Freewillers), including men like Henry Hart and John Champneys, read Isaiah 29:13-
14, which teaches that the wicked honor God with their lips “taught by the commandment of men”, but that
“wisdom of the wise men shall perish” and concluded that they were better off with small churches in homes
taught by those who studied the Scripture despite the claims of Protestant and Catholic alike that they
needed to heed the teaching of the educated and ordained who were sanctioned by the church and crown.
Henry Hart boldly proclaimed:

“Woe be to those bishops, pastors / and lawyers / of what name and place so ever they be, which
boast of power and authority to rule and govern another / and yet have no respect to their own souls:
for . . . miserably shall they be rewarded that bear the name of christian people which seek holiness
only by outward sacraments and signs, not regarding what the heart and inward conscience be / and
also say in your selves, tush we be well enough, for the holy laws ceremonies / and Sacraments of
god are remaining among us and thereby we are known to be his people. Nevertheless be thou of
good comfort, O thou little worm Jacob, and thou despised Israel, for thy redeemer liveth: fear
neither the proud boasting nor threatening of thine enemies…”

These were the first who challenged the idea of an established church, not by ideas alone, but with their
actions. For this they were threatened, jailed, and many were executed. The educated elite could not
silence them with their human wisdom, so they turned to the sword and the faggot.

Sabastien Castellio, hiding in Bern, Switzerland, but never far from the shadow of repressive Geneva, dared
to read the parable of the wheat and tares found in Matthew 13 and not just rely on the contorted
interpretation of that passage in the writings of Augustine. Augustine’s disciple, John Calvin, believed that it
was his job, not God’s to separate the wheat from the tares by the execution of heretics. Castellio’s
arguments for religious liberty were not based on a rejection of Scripture, but on its proper interpretation.
Castellio’s words, which were cited by later English dissenters, still ring true today:

“Christ made a direct command to leave the tares until the harvest, not to root them out; Ananias and
Sapphira were killed by a direct act of God, not church or civil officials; Deuteronomy 13 says that
the test for a false prophet is whether their predictions come true, not whether their interpretation of
Scripture agrees with that of the ruling authority

It is absurd to wage spiritual war with earthly arms. . . The office of the doctor is not to be committed
to the executioner, nor the outside of the cup to be cleansed before the inside.”

Thomas Helwys and the other early Baptists in England were moved by the words of John 4:24: “God is
spirit, and they that worship him, must worship him in spirit and truth.” From this passage Helwys concluded
that coerced worship can never be accepted by God because it does not flow from the heart of the compelled
worshipper and is ridiculed with hypocrisy. Because he read the Scriptures to demand only true worship
from a free heart, Helwys advocated religious liberty and he dared to send his plea theory for freedom to the
reprobate King James. James threw Helwys into Newgate Prison. He died, but his ideas did not disappear,
because they were not his alone but naturally flowed from a correct reading of the Word of God.

Samuel How, a simple cobbler, dared to preach in the early days of the English Civil War. His preaching, like
all of his actions, was grounded in Scripture. He placed particular reliance on 1 Corinthians 2 which taught
him that spiritual knowledge is given to us freely since, as believers, we have the mind of Christ. He argued
that the formal blessing of the state and church was no guarantee of spiritual wisdom:

“The natural man, or carnal reason, cannot perceive the things of God—therefore a university
degree and proficiency in classical languages is no guarantee that an individual is a spiritual leader,
and these qualifications should certainly not form the test of whether an individual can understand
and interpret for themselves the Word of God . . . God can and does communicate His truth to
peddlers, tinkers, chimney-sweepers, and cobblers.”

How engaged in freedom of speech and the free exercise of religion—ideals we now cherish—but did so at a
time that it was illegal to speak against the official conclusions of the established church. His actions
produced his arrest. His arrest, however, aided the ongoing march of religious liberty.

William Dell, chaplain in the New Model Army, saw the potential for liberty evaporate as both the Anglicans
and the Presbyterians battle for ecclesiastical supremacy. During the crucial days of the Westminster
Assembly, he defied the call for coerced uniformity to the Confession. Rather, reasoning from Galatians 5
and 6, he called for a spiritual unity based on our new birth in Christ in lieu of coerced uniformity arising from
a national doctrine.

“As in Christ’s kingdom neither Circumcision availeth any thing, nor uncircumcision, but a new
creature, so in this same kingdom of Christ, neither Presbytery availeth anything nor Independency,
but a new creature: and that the kingdom of God stands not in Presbytery or Independency, but in
righteousness, and peace, and joy in the holy Ghost.” . . . The spiritual distinctions that matter “lie
only there, where God hath made it,” between those born after the flesh and those born after the
Spirit.”
Roger Williams was influenced by Hebrews 4:12 that proclaims that the Word of God is the sword that God
wants to use to judge the hearts of men. This meant, of course, that there was no role for the sword of
government in spiritual matters. “The civil sword cannot reach all the way into the spirit—but the Word of
God can and does.” Williams’ biblical advocacy of religious liberty was not merely found in his writings, but in
the founding of Rhode Island, a colony committed to liberty for all.

Christopher Blackwood, a Baptist pastor from Kent, writing in the Pamphlet Wars of the mid-seventeenth
century, contended that true belief in the Christian faith is utterly inconsistent with any effort of coercion of the
human will. God does not coerce us to believe, neither should man. Blackwood took his understanding of
Scripture to its logical conclusion that God was not pleased with a national church.

“It overthrows Christian liberty to force a man to act according to what he believes is a lie – it is far
worse to have “a glorious seeming uniformity in a state of self-condemnation” in a single national
church than it is to have “conscientious satisfaction” with diversity of opinion and congregations.”

John Sturgion’s 1660 response to the repression by Anglican officials proclaimed the theme that we would
find echoed in America a century later. “Mankind has different duties to both God and the state—and the
state has no right to interfere with God’s prerogative.” Sturgion, a member of the “baptised peoples” found his
ideas of liberty in the pages of the Word of God.

John Locke, whose role in the development of the theories of liberty cannot be questioned, reasoned from
Scripture. He contested the idea that a true church could ever be found within the pages of the Gospels.

“Someone perhaps may object, that no such Society can be said to be a true Church, unless it have
in it a Bishop, or Presbyter, with Ruling authority derived from the very Apostles, and continued down
unto the present times by uninterrupted Succession. To these I answer: In the first place, Let them
show me the Edict by which Christ has imposed that Law upon his Church. And let not any man
think me impertinent if in a thing of this consequence, I require that the Terms of that Edict be very
express and positive. For the Promise he has made us, that wheresoever two or three are gathered
together in his Name, he will be in the midst of them, seems to imply the contrary.”

Locke rightly understood that Christ is found among the faithful few—an idea he expressly got from a faithful
application of the teaching of Matthew 18:30.

Gilbert Tennet, son of a Presbyterian minister, influenced by the great George Whitefield, preached in the
American colonies in the 1740s and 1750s that it was improper for the state to demand the right to license
ministers. This idea came from his reading of Romans 14:23, which proclaims that any spiritual service that
does not flow from a faithful spirit is sin. Tennet concluded that it was sin—an idea not fashionable among
the Enlightenment philosophers—to compel a man to confess doctrine he did not genuinely believe.
“To bind Men to a particular Minister, against their Judgment and inclinations, when they are more
edified elsewhere, is carnal with a Witness; a cruel Oppression of tender Consciences, a compelling
of Men to Sin: For he that doubts, is damn’d if he eat; and whatsoever is not of Faith, is Sin.”

Toward the end of the American colonial period, Baptist and Presbyterian petitioners reasoned from the
Gospels and the Book of Acts to proclaim that the established church’s licensing requirements were
unscriptural.

“Regulation of their churches and licensing requirements ‘inconsistent with . . . the Practice and
Usage of the Primitive Churches’ and contrary to ‘the Example of our blessed Saviour, “who went
about doing good,” and the example of his Apostles who not only “taught in the Temple, but in every
hour where they came they ceased not to teach and preach Jesus Christ.”’”

John Leland, that great Baptist preacher and associate of James Madison, focused on Christ’s final judgment
as one of his many scriptural arguments for religious liberty. “Every man must give an account of himself to
God, and therefore every man ought to be at liberty to serve God in that way that he can best reconcile it to
his conscience. If Government, can answer for individuals at the day of judgment, let men be controlled by it,
in religious matters; otherwise, let men be free.”

Leland, like so many of the other advocates of religious liberty, was no mere philosopher or author. He
thought and wrote and acted. He didn’t just talk about religious liberty. He was an actor on the stage of
history that turns ideas into reality.

James Madison played a key role in the founding of this nation and the establishment of religious liberty and
clearly deserves to be known as the Father of the Constitution. But the true heroes of our story are the
common people that Tyndale inspired and Madison marshaled for political victory. These individuals are the
ones who read the Word of God and truly understood both the liberty of the soul and the liberty of the mind.
And the test of liberty has never been whether one asked for liberty for himself, but whether he wished liberty
for all men of all faiths or no faith at all.

Historian Perez Zagorin has examined the supposed role played by the Enlightenment in the development of
the ideals of religious liberty. He found little evidence of a direct influence. Instead he looked to the era of
the Kent conventiclers and Thomas Helwys and concluded, “[T]he intellectual changes…, since they
occurred only gradually, cannot possibly account for the theories and defenses of toleration that appeared in
the second half of the sixteenth century. The latter were the work of profoundly Christian if also unorthodox
thinkers, not of minds inclined to religious indifference or unbelief; and they same is also true of nearly all the
major theorists of toleration in the seventeenth century.”i

The fabled W.K. Jordan said much the same thing in the opening pages of his five-volume work on the
history of British religious toleration. “It cannot be denied that skepticism and indifference have been
powerful agents in weakening the theory and practice of persecution. But is an error to say that the
indifferent man can be tolerant of a religious belief; he is simply indifferent to it. There can be little doubt that
the modern tolerance towards religious diversity has a large content of indifference, but religious toleration,
was achieved, at least in England, before public indifference to theological questions had attained a place of
dominant influence.”

It is one thing to talk about religious liberty as an abstract concept. It is quite another to enter into the lists of
battle and be willing to win religious liberty—sometimes at a great personal cost. Those willing to engage in
such a battle are not the indifferent, but those whose personal faith is at the core of their life.

Ideas matter. And not all religious ideas are equal. Those who found the ideals of religious liberty found
these in the Word of God and were directly connected to their belief about personal salvation, the need for
individual regeneration, and the spiritual nature of the Church. They did not believe in religious in spite of
their Christianity, but for explicitly because of their individual faith in Christ that had been molded and
instructed by the Word of God.

The greatest evidence of the truth of the inner reality of their commitment to liberty can be found in their
willingness to support the cause of liberty for those different from themselves. This leads us to one final story
from the Virginia Baptists of the late 1700s.

Even as the Bill of Rights was still being debated and ratified, the Virginia General Baptist association held
yet another political meeting. They met on May 8, 1790 in Richmond. One of the resolutions concerned the
issue of slavery. A committee was appointed to consider the matter, but it could not agree on the wording of
any resolution. But, as the official minutes record, they…

“…agreed to lay the weight thereof, on the Reverend John Leland who brought forth in a resolution
which was agreed to and is as followeth:

Resolved, That slavery, is a violent deprivation of the rights of nature, and inconsistent with a
republican government; and therefore recommend it to our Brethren to make use of every legal
measure, to extirpate the horrid evil from the land, and pray Almighty God, that our Honourable
Legislature may have it in their power, to proclaim the general Jubilee, consistent with the principles
of good policy.”
Leland read the Bible and understood the principle of Jubilee—a declaration of freedom for all encumbered
by debt and servitude.

Leland and the Virginia Baptists were ahead of their time on the issue of slavery. But then again, on matters
of liberty, the ploughboys were consistently in front of the educated elite who thought they knew better. The
reason we have a Bill of Rights in the United States is because countless ploughboys like John Leland
believed the Bible and took seriously its teaching about liberty for all. It is the Word of God that is our source
of liberty.

“Now the Lord is the Spirit; and where the Spirit of the Lord is, there is liberty.”

Question from JOSIAH HINTERBERGER:


In today’s chat you said that Congress could (constitutionally) ban pornography on the internet. This brought
out in me a question (as things usually do...):

Could Congress ban pornography on the internet that was not in the channel of commerce?
Or even before we get to that; Could parts of the internet be considered not inside the "channel" of
commerce? (For example, private and privately owned forums closed to the general public.)
It seems to me that saying that Congress can regulate the internet carte-blanche because commerce often
travels through it is like saying that Congress can regulate the air because airplanes often travel through it.

Answer from DR. FARRIS:


The internet is a channel of commerce just like TV broadcast airwaves and the Mississippi river. There is no
such thing as a portion of the channel outside the control of Congress. Congress can regulate the air for the
purpose of anything in the air that would get in the way of an airplane. It can't regulate the air for breathing.
(Or at least it shouldn't). So if a guy puts big balloons on a lawn chair and goes up in the air, he has entered
the space controlled by Congress and it is proper for them to punish such private behavior if done in a way
that violates the rules relative to air flight.

Question from DANIEL SILEO:


From what I read in United States v. Lopez, Wickard v. Filburn seems like an infringement on the very
important concept of free enterprise in the United States. How can the U.S. limit the number of acres a
farmer can plant just because they're trying to limit the amount of a crop so that the price will be raised? That
seems totally unfair to me - maybe I'm not reading it correctly or I don't have enough background information.

Answer from DR. FARRIS:


Free enterprise is a political philosophy. It is not a constitutional right. Our government has gone way too far
down the road to socialism. Franklin Roosevelt pushed this country radically in this direction, but it has been
more or less down hill since then.

Question from JOSIAH HINTERBERGER:


Dr. Farris, you told me in class that I should read the concurring opinion of Justice Thomas in Lopez if I
wanted evidence of the constitutionality of the regulation of instrumentalities and channels. However, I read
it and couldn't find anything; did you mean Story?

Answer from DR. FARRIS:


Thomas' opinion gives the basics: Commerce is trade and shipping. The places that allow interstate trade:
airways, rivers, etc. are channels. The vessels used are the instrumentalities. They may not have used the
exact phrases but the meaning is not really disputed by any conservative constitutional scholars. Read the
underlying briefs if you can find them on the internet.
Question from JOSIAH HINTERBERGER:
I was wondering about the "Negative Commerce Clause". Justice Rehnquist talked about in Lopez:
"In 1887, Congress enacted the Interstate Commerce Act, 24 Stat. 379, and in 1890, Congress enacted the
Sherman Antitrust Act, 26 Stat. 209, as amended, 15 U.S.C. Article 1 et seq. These laws ushered in a new
era of federal regulation under the commerce power. When cases involving these laws first reached this
Court, we imported from our negative Commerce Clause cases the approach that Congress could not
regulate activities such as "production," "manufacturing," and "mining." See, e.g., United States v. E. C.
Knight Co., 156 U.S. 1, 12 (1895) ("Commerce succeeds to manufacture, and is not part of it"); Carter v.
Carter Coal Co., 298 U.S. 238, 304 (1936) ("Mining brings the subject matter of commerce into existence.
Commerce disposes of it")." I think I've heard that term before somewhere--What does it mean?

Answer from DR. FARRIS:


You selected too small a section to understand what is going on. It is not the "Negative Commerce Clause"
you must add the next word: "The Negative Commerce Clause cases". These cases were the ones which
said that states could not use the Commerce Clause power. So, state laws which invaded the power of
Congress over interstate commerce were ruled unconstitutional.

Question from JOSHUA MAGEE:


I'm sort of surprised to hear you say the Bill of Rights only applies to the federal government. I guess it
makes sense, but I'd never heard that before. If that's true, then that means states can enact gun laws can't
they? Do you think that you could post some information about the history of the Bill of Rights? Some of
them certainly seem to apply only to the federal government, but others seem to apply to state governments
as well, such as the second amendment. It doesn't mention a government but just states a regulation and
reason for it.

Answer from DR. FARRIS:


Here is my first answer to this. This is an article that I have in the textbook I use in my college course in
Constitutional Law at Patrick Henry College. It gives more background on the 14th Amendment. This has a
lot of material that is beyond the question you ask--and it is not a complete answer to the question you ask.
But it is pertinent in general and I wanted to make it available. I am going to write a further answer in just a
moment in a separate entry.

“Unraveling the Fourteenth Amendment”


by Michael P. Farris
Although the 14th Amendment contains several sections with several components in each section, there are
only two sections that have been used with any frequency by the Supreme Court: the Due Process Clause
and the Equal Protection Clause.

By its very terms, the 14th Amendment applies only to the states. It is fairly easy to catalog how the Supreme
Court has interpreted the Due Process and Equal Protection clauses. It is far more difficult to make sense of
their rulings in light of original intent.

EQUAL PROTECTION

It is obvious that state governments need to be able to draw lines and make distinctions in the law. For
example, five year old children shouldn’t be allowed to drive tractor-trailers on the highway. But distinguishing
between 5 year olds and 25 year olds in a law concerning eligibility to drive tractor-trailers is a violation of the
principle of equal protection if you take an extremely literal view of the matter. Also, those who have gone to
medical school and passed exams can perform brain surgery, those who have not done this cannot do so
according to state medical licensing laws. This is another example of a facial violation of equal protection.

No one wants 5 year olds driving tractor trailers, nor untrained persons performing brain surgery. So we have
to have the ability to have laws that draw lines and make distinctions between various classes of persons for
a great variety of purposes.

If the Equal Protection Clause had merely said “no person shall be denied equal protection of the laws on the
account of their race” then this would all be very easy. But the Clause does not say that. It clearly includes
the principle that racial discrimination is unconstitutional, but the drafters of the 14th Amendment did not
choose to limit this principle merely to racial inequality.

So the courts are left with a dilemma. How do we keep five year olds out of the driver’s seat and untrained
persons out of the operating room and yet provide some meaning to the provision that guarantees equal
protection?

THE SUPREME COURT’S VIEW

The Court has created a complex set of tests for the Equal Protection Clause—no surprise there. These tests
have little to do with original intent—in fact, I cannot recall any meaningful discussion of original intent in
connection with the creation of any of these tests.

The Court started off with two basic divisions: cases requiring “strict judicial scrutiny” and cases not requiring
such scrutiny—or requiring only ordinary scrutiny. (Today there are three levels—but that makes things too
complex too quickly, so let’s just think about the two levels for a while.)

When do you apply strict scrutiny? If a state law divides the population along lines that create a “suspect
classification,” then the law is subject to strict judicial scrutiny. The easiest example here is racial
discrimination. If a law says: white children go to one set of public schools and black children go to a different
set of public schools, then this is a racial classification and this law will be examined under strict judicial
scrutiny.

Strict scrutiny is essentially the same as the compelling governmental interest test we are familiar with in
First Amendment law. The law which creates a suspect classification is presumed to be unconstitutional. The
government can still overcome this presumption, but to do so it must show that this classification serves a
compelling governmental interest.

This is how liberals try to defend laws requiring racial quotas. They recognize that a law requiring employers
to give favoritism to racial minorities creates a racial division—and thus requires strict judicial scrutiny. But
they say that “overcoming decades of discrimination” is a compelling governmental interest and justifies this
discrimination against white people. (By the way, these laws are not doing very well in the courts in recent
years.)

If the law draws lines that are more ordinary—you must be 16 to get a driver’s license—then ordinary
scrutiny is applied. The law is presumed to be constitutional. The litigant claiming that he has been denied
equal protection—the 12 year old who challenges the age discrimination for drivers licensing, for example—
must prove that the law is not reasonably (or rationally) related to some legitimate governmental interest.

This “rational relationship” test requires two things: (1) that the governmental interest—the goal of the law—is
legitimate; (2) that the law has a reasonable relationship to the achievement of that goal.

The vast majority of cases focus on the second of these two tests. It is conceded that “traffic safety” (for
example) is a legitimate governmental interest. But the question is whether the law is reasonably related to
that interest. Thus, a law saying you have to be 16 to get a driver’s license is reasonably related to the
interest of traffic safety. A law which said you must wear a green t-shirt while driving would not be reasonably
related to the governmental interest of traffic safety.
Note how different this case might be if the other test was used. If a 15 year-old challenged the age limit for
drivers licensing and was entitled to “strict scrutiny” then the age discrimination would be presumptively
unconstitutional. The state could not defend its scheme under the compelling interest test saying that 5 year-
olds needed to be kept out of the driver’s seat in large trucks, the state would have to show that an interest of
the highest order required the line to be drawn at 16 rather than at 15. That would be very hard for the
government to do.

The choice of test is of paramount importance. When strict scrutiny is applied, the government rarely wins.
When the rational relationship test is used, the government rarely loses.

A case HSLDA has pending right now (April 2003) demonstrates the more rare kind of equal protection
challenge—one which challenges the legitimacy of the governmental interest.

A county in Maryland allows outside organizations to teach geography and knitting classes to students in
their community center buildings. However, home school groups which want to teach geography and knitting
classes to students are not allowed to use these buildings.

The reason given by the County Board for the ban was this: We didn’t want to have trouble with the school
board if we allowed a home school group to use these buildings.

We have argued that the desire for one group of politicians to avoid conflict with another group of politicians
is not a legitimate governmental interest. Thus, even if the County is successful in seeking ordinary scrutiny
rather than strict scrutiny (as we argue), the policy is still not constitutional because the goal of the policy is
not legitimate.

Very few kinds of discrimination are considered “suspect classifications.” Notably, gender discrimination is
not considered a “suspect classification.” Gender discrimination is evaluated under a mid-range standard that
we will study in more detail.

MY VIEW

As usual, I do not like the “tests” created by the Supreme Court unless they can be justified on the basis of
original intent.

You may remember that with the First Amendment the general rule of thumb for original intent is that the
founders were trying to preserve the long-standing traditional rights of American citizens. However, with the
14th Amendment, the goal was the opposite. Rather than trying to preserve the law, the purpose of this
Amendment was to change the law—at least with respect to the way that black people were treated by the
law.

It is easy to read history and conclude that something very much like the suspect classification test was
intended—but only in the area of racial discrimination.

I believe that the Equal Protection Clause bans arbitrary treatment of individuals. Racial discrimination is
always arbitrary. The core meaning of arbitrary is a distinction which lacks a valid basis. The question would
then be: what did the people who wrote the 14th Amendment consider to be an arbitrary, unreasonable, or
irrational distinction, and what did they consider to be a valid distinction.

Outside the area of race, it is very appropriate to look at the law in place at the time—particularly the kinds of
laws enacted, not in the 1700s, but in the mid-to-late-1800s—to see what kind of distinctions were
considered permitted. Some distinctions between men and women were permitted. Distinctions between
homosexuals and heterosexuals were permitted.

DUE PROCESS
If you think that Equal Protection is complex, wait until we get through unraveling the 14th Amendment’s Due
Process Clause.

“No person shall be denied life, liberty, or property without due process of law.”

On the face of these words, it seems this Clause is intended to do nothing more than to make sure that the
state courts give everyone a fair trial with all the appropriate components of due process in both civil and
criminal cases. And there are people who—with some considerable justification—think that this Clause
means this and nothing more.

THE SUPREME COURT’S VIEW

The 14th Amendment Due Process Clause has been the chief mechanism by which the Supreme Court and
lower federal courts have seized general control of state and local governments.

The Supreme Court has applied the 14th Amendment Due Process Clause to state and local governments in
three distinct ways:

1. States must guarantee fair trials in their courts. (This is not controversial.) This is called procedural due
process.

2. States must obey the restrictions of most, but not all of the Bill of Rights. (This is not controversial with the
Supreme Court or virtually any lawyer. It is controversial with a very few including me—although I use this
theory in court.) This is called the incorporation doctrine—that is (the bulk of) the Bill of Rights are
“incorporated into” the Due Process Clause. (This is also called at times: the federalization of the Bill of
Rights, or, perhaps, more accurately, the nationalization of the Bill of Rights.)

3. States must protect constitutional rights that are not listed in the Bill of Rights. (This is controversial. Scalia
rejects it entirely. I think it has gone way overboard although I do not reject it entirely.) This is called
substantive due process.
We will skip over the area of procedural due process since it is not controversial. This principle is absolutely
consistent with original intent, although occasionally is it misused. But in the general sense it is perfectly
proper.

THE INCORPORATION DOCTRINE

The Supreme Court has held that most of the provisions of the Bill of Rights must be obeyed by state and
local government. This includes the entire content of the First Amendment and other provisions such as the
ban on double jeopardy, no cruel and unusual punishment, and the right to counsel. It has not included, for
example, the rule that all civil trials in amounts of over $20 must be tried by a jury. This provision in the
Seventh Amendment binds only the federal courts. State courts can set their own financial minimums for jury
trials in civil cases. (But interestingly, the federal courts have used the Incorporation Doctrine to require the
federal standards to be followed by the states in setting jury trials in criminal cases.)

MY VIEW

This entire theory is historically suspect. There is no basis for saying that those who drafted or ratified the
14th Amendment intended the states to be required to obey the Bill of Rights. The reason this is so is that the
state constitutions have parallel provisions to the vast majority of the Bill of Rights in virtually every state.

This theory is also illogical. If the drafters/ratifiers intended to incorporate the Bill of Rights, why were they
selective about which provisions were incorporated and which were left out? How can a rational person tell
which is which?
The only way that a person can tell which is which is to research the decisions of the Supreme Court and see
which is in and which is out. One will search these decisions in vain to find a rational basis for finding those
which are included and those which are excluded.

If the states have parallel provisions to all of the Bill of Rights, why is this controversial? They would have to
grant free speech rights anyway, what’s the difference if the federal or state constitution is cited?

The difference is huge. It is a question of who decides. If the federal constitution is the standard, then the
U.S. Supreme Court sets the standard. To use a popular example, the Supreme Court has decided that
legislative groups—including Congress—can pray but that public schools cannot pray. This is despite the fact
that the First Amendment is directly addressed to Congress, not the public schools.

If the issue of school prayer was decided under a state constitution, the courts of that state would make a
decision that was unreviewable by the Supreme Court or any other federal court. Thus, they could hold that
since the legislature can pray, the schools can also pray since the same provision in the state constitution
controls both governmental bodies and there is nothing in the language of the text which would justify a
different outcome in the two different settings.

No state would have a state church if the federal Establishment Clause was not applied to the states. But,
there would be some states that allowed school prayer, while others would ban it under their own state
constitutions.

The core principles of the Bill of Rights—no state church, for example—would be followed everywhere. But
there would be differences from state to state around the more peripheral issues such as school prayer.

There would be more variety of outcomes in the states if the Bill of Rights were not (selectively) incorporated.
One would have to admit that in some states, there would be less freedom than is allowed under the current
nationalized standards. But in other states there would be the same freedom and in others, perhaps more
freedom in some areas. (In the free exercise of religion, this is current the case. A great number of states do
not follow Smith v. Employment Division, but grant a higher protection for the free exercise of religion than
this decision offers.)

However, it is also probable that there would be greater restrictions on the power of the federal government
to trample on our rights if the Bill of Rights were not incorporated.

Why do I say this?

In must be remembered that the effect of the incorporation doctrine is that the federal government and the
state governments must follow the exact same standards in free exercise, establishment of religion, freedom
of speech, freedom of the press, cruel and unusual punishments—etc.

In every one of these areas—particularly the First Amendment areas—the Court has adopted a balancing
test—the compelling governmental interest test, with the notable exception of most free exercise cases.

But the First Amendment’s language does not admit of a balancing test. It says: Congress shall make NO
LAW. I view the First Amendment as an absolute ban on the power of the federal government (which should
never act unless authorized by a law of Congress) to exercise jurisdiction over these areas at all. Thus, the
IRS could not exercise jurisdiction over churches at all. Period. The First Amendment is a jurisdictional
limitation not a grant of rights.

It is appropriate to limit the federal government this way. Since the federal government has only delegated
powers, an absolute rule with no balancing is appropriate. People won’t get away with murder in the name of
religion, for example, because murder is a subject that has not been delegated to the federal government at
all.

States cannot adopt an absolute rule regarding religious freedom. They do face the issue of whether
someone can get away with murder in the name of religion. States must have a balancing test.
Thus, it is my contention that on the whole we would have more freedom if the First Amendment was used as
an absolute rule vis-à-vis the federal government and that the states were allowed flexibility under their state
constitutions to reach their own particular outcomes.

SUBSTANTIVE DUE PROCESS

This last area is the most controversial of all. This theory allows the Supreme Court to take matters that are
not in the Constitution at all and add them to the rights of the people.

These unwritten rights include some very good provisions--parental rights to control their children's education
and upbringing--and the very bad theories--the right of a woman to reproductive freedom.

Justice Scalia takes the logical view that no rights should be found to be included in the Constitution which
are not written in the text. Therefore, he opposes both abortion rights and parental rights. He opposes the
very notion of substantive due process.

My long-held view has been that only those rights which were rooted and grounded in the American-English
Common law are protected without being written. I would cite the 9th Amendment to make parental rights a
guarantee which the federal government could not violate.

I have trouble making parental rights fit within the Due Process language of the 14th Amendment. In essence
I have argued that parental rights must be recognized as a liberty provision that should be given some
substance. In more recent months, I have become more convinced that Scalia's view may be better
concerning the whole theory of substantive due process.

I think that parental rights can be recast as a proper part of procedural due process.

Let me begin my argument with an analogy. I believe that procedural due process prevents a state legislature
from passing a law saying, “Anyone charged with murder shall be convicted upon a roll of the dice.” In other
words, it is not enough for the legislature to simply pass a law. There is a certain level of proof required to
take away someone's liberty or life in the context of a murder trial.

I think this is true with parental rights as well. There is 400 years of Anglo-American legal history that says
that a parent has the power to make all decisions concerning his/her children including decisions about
education and discipline unless it has been proven that this parent has abused or neglected his or her
children.

Parental rights are the only area of substantive due process that I think are valid. All other substantive due
process rights are like abortion and homosexual rights--absolutely improper. It is impossible to recast these
bad areas into a procedural due process rights that are grounded in history.

Secondary Answer from DR. FARRIS:


Here is a statement from a Supreme Court opinion giving you a very brief overview of the Bill of Rights and
their original applicability to the states.
This is from a separate opinion of Justice Stevens in Delaware v. Van Arsdall
475 U.S. 673, 106 S.Ct. 1431; U.S.Del.,1986.

While Justice Stevens is my least favorite justice, his recitation of the relevant history is accurate in this
passage.

”It must be remembered that every State but Rhode Island had a written constitution by the close of the
Revolutionary War in 1783. “[F]or the first century of this Nation's history, the Bill of Rights of the Constitution
of the United States was solely a protection for the individual in relation to federal authorities. State
Constitutions protected the liberties of the people of the several States from abuse by state authorities.”
Massachusetts v. Upton, 466 U.S., at 738-739, 104 S.Ct., at 2091 (STEVENS, J., concurring in judgment).
The independent significance of state constitutions clearly informed this Court's conclusion, in Barron v. The
Mayor and City Council of Baltimore, 7 Pet. (32 U.S.) 243, 247-248, 8 L.Ed. 672 (1833) that the Bill of Rights
applied only to the Federal Government:

The question thus presented is, we think, of great importance, but not of much difficulty. The constitution was
ordained and established by the people of the United States for themselves, for their own *706 government,
and not for the government of the individual states. Each state established a constitution for itself, and, in that
constitution, provided such limitations and restrictions on the powers of its particular government as its
judgment dictated... In their several constitutions they have imposed such restrictions on their respective
governments as their own wisdom suggested; such as they deemed most proper for themselves. It is a
subject on which they judge exclusively, and with which others interfere no farther than they are supposed to
have a common interest.”

The first time the Supreme Court applied any portion of the Bill of Rights to the states was in the case of
Gitlow v. People of New York, 268 U.S. 652 (1925)

Here is the entire discussion of the decision to apply freedom of speech from the First Amendment to a state
case. This began the entire theory of the "selective incorporation of the Bill of Rights into the 14th
Amendment."

“For present purposes we may and do assume that freedom of speech and of the press -- which are
protected by the First Amendment from abridgment by Congress -- are among the fundamental personal
rights and “liberties” protected by the due process clause of the Fourteenth Amendment from impairment by
the States. We do not regard the incidental statement in Prudential Ins. Co. v. Cheek, 259 U.S. 530, 543, that
the Fourteenth Amendment imposes no restrictions on the States concerning freedom of speech, as
determinative of this question.”

Now wasn't that convincing? Didn't you love their historical research? This whole theory is based on an
assumption. Once again, the Supreme Court has just made up a theory out of thin air. By reading the above-
paragraph from Gitlow, you can see how thin the air really is.

Question from RACHEL FORD:


Dr. Farris, I have two questions about the Emancipation Proclamation. My research tells me that President
Lincoln issued this document as an executive order. This was before the cases that we studied on the power
of the President. Was President Lincoln's order constitutional and would the Supreme Court have upheld it at
that time?

Student input from JOSHUA MAGEE:


The Emancipation Proclamation only freed slaves in the South, and only in the parts that were still at war, so
I believe it would come under the President's powers during war. Lincoln's reason for freeing the slaves was
that the slaves were helping work the farms, etc, while the men were off fighting, so if they were freed the
South would have more trouble in their already starving economy and would eventually collapse. And there
was no way to challenge it under the US constitution, because it only freed slaves in the South, which was
not part of the United States.

Answer from DR. FARRIS:


I basically agree with Joshua. Lincoln used his Commander in Chief powers to free the slaves in the states
under military rebellion. He respected the limits of his constitutional authority by not purporting to use an
executive order to free states within the Union. The only point I would disagree with Joshua is whether the
South was not a part of the United States at the time. They were a part of the US, or else Lincoln would
have no authority at all. They were still part of the country, they were just in rebellion.
Question from JOSIAH HINTERBERGER:
Dr. Farris, in your audio discussion of Widmar v. Vincent, you talked about the right of students
at government school being able to wear the Ten Commandments on their t-shirts if the desired. Well, a little
while back, a local girl was barred by the school authorities from wearing a shirt to school that said
something like "Gay is fine with me--I don't discriminate". They did so on the basis of a school policy that
bans clothing inscriptions that may be offensive, or that touch a hot-button issue; religious or otherwise. Can
the school constitutionally make a ban like this?

Answer from DR. FARRIS:


Schools can ban disruptive speech--but it is very tricky. All such bans must measure that which is truly
disruptive and must be done on an equal basis. I am surprised that this particular shirt was banned--that
attitude seems to be philosophy of most public schools. I would have expected a "homosexuality is sin" shirt
to be banned. But, the trick is defining disruption and equal treatment. Lawyers do better with particular
cases than pure abstractions. If I could go to that high school and read the shirts, I could tell you in five
minutes whether a court was likely to uphold that ban or not.

Question from AMANDA MITCHELL:


First, some background info: Hillsdale College is an independent college, located in Hillsdale, Michigan. It
receives no State or Federal money. Can Hillsdale College require certain immunization before admitting a
student?

Answer from DR. FARRIS:


Hillsdale is a private college--they can require anything they like that is not illegal. If the want to require you
to paint your toenails green and pink they can do so.

Question from JOSIAH HINTERBERGER:


How does the Article 1 privilege of habeas corpus jive with our things like Gitmo? Do we justify it under
"invasion"?

Answer from DR. FARRIS:


Illegal combatants have no historical right to habeas corpus. (The SCT may disagree, but since when has
that stopped me from opining?)

Question from JOSIAH HINTERBERGER:


Dr. Farris, I see something on page 26 that comes across weird:

"For example, the Constitution’s General Welfare Clause is a direct "descendant" of this phrase from the
Articles of Confederation:

‘All charges of war, and all other expenses that shall be incurred for the common defense or general welfare,
and allowed by the united states in congress assembled, shall be defrayed out of a common treasury...it is
pretty easy to determine the original meaning of the General Welfare Clause when we recognize that it was
taken nearly word-for-word out of the Articles of Confederation. ... Congress under the Articles of
Confederation had extraordinarily limited power. If it had the power to spend money on any subject it
wished, there might not have been a need to amend the Articles at all.’”

But that need not be the case--the Confederation Congress could have had the power to SPEND, but simply
not the power to TAX. I recall the lack of a good way to tax was a large problem with the AOC. Furthermore,
the language of "OR the general welfare" makes it sound like a separate grant of power not a qualification.
Why isn't there any explanation nearby to resolve this apparent confusion?
Answer from DR. FARRIS:
There were several problems with the Articles. The inability to force the states to pay the taxes was indeed a
big problem. But there were also very big problems concerning the scope of the government to act--for
example, the confederation congress was unable to act to regulate international or interstate commerce.
There were severe problems on both fronts. Today the theory is that the General Welfare Clause gives the
federal government to spend money on issues not within its enumerated powers. For example, Medicare is
not within the enumerated powers but it is justified on the General Welfare front. This is a massive program
of socialized medicine which both regulates and spends.

If the General Welfare Clause in the Articles were interpreted on the same basis--the Congress can spend
money on anything that promotes the general welfare--then they could have spend money to regulate trade
internationally etc. If you can spend money on a subject, you can regulate it.

If either document had a wide open ability to spend, then its ability to regulate is without practical limit.

Question from JOSIAH HINTERBERGER:


In today’s chat you said that Congress could (constitutionally) ban pornography on the internet. This brought
out in me a question (as things usually do...):

Could parts of the internet be considered not inside the "channel" of commerce? (For example, private and
privately owned forums closed to the general public.) It seems to me that saying that Congress can regulate
the internet carte-blanche because commerce often travels through it is like saying that Congress can
regulate the air because airplanes often travel through it.

Answer from DR. FARRIS:


The internet is a channel of commerce just like TV broadcast airwaves and the Mississippi river. There is no
such thing as a portion of the channel outside the control of Congress.

Congress can regulate the air for the purpose of anything in the air that would get in the way of an airplane.
It can't regulate the air for breathing. (Or at least it shouldn't). So if a guy puts big balloons on a lawn chair
and goes up in the air, he has entered the space controlled by Congress and it is proper for them to punish
such private behavior if done in a way that violates the rules relative to air flight.

Follow-up question from JOSIAH HINTERBERGER:


Which brings me back to my original question--is all of the internet a channel of commerce? Roads are a
channel of commerce, but Congress cannot regulate our backyard footpath because commerce doesn't
every travel across state lines via it. Accordingly, can we say that portions of the internet are not in
the "channel" of because they do not allow passage of commerce between states? (Such as free private
forums, articles posted for general viewing, etc...)

Follow-up answer from DR. FARRIS:


I thought I had answered this. Read my comments about the Mississippi River. If there was a little inlet off
the Mississippi River and the only use of that was intra-state commerce and not any interstate commerce, it
would still be subject to the regulation by Congress because a river is a river and it is either all in as a
channel or it is all out. The internet is all in because it is clearly a channel of interstate and international
commerce even if two dudes sell each other stuff from the same state from time to time.

Follow-up question from JOSHUA MAGEE:


Well, this gives me a question. Where does the internet stop? In my home we have a "local network" of
several computers that is sometimes not connected to "the web." While the connection to the net we're not
under regulations regarding the internet, but when we are, how much of us is controlled? Since the computer
I am currently typing on is connected to the web, does that mean everything on it must conform to
government regulations? Does that mean that everyone who sees the screen right now must be abiding by
government regulations about the net? What I mean is, could Congress say that since I am typing on a
computer connected to the net, that I must therefore, say, wear a green shirt, or something?

And, backing up, how far does the navigable water system reach? We have a creek flowing through our
woods that flows into a tributary of a nearby river. Can the government regulate our creek? Now, I
understand this creek isn't very navigable, but where do you draw the line?

And where does the SCT draw the line here?

Follow-up answer from DR. FARRIS:


We are discussing theory here, not reality since Congress has not seen fit to attempt to regulate the internet
in a comprehensive fashion. The Supreme Court would have no occasion to visit the issue in the absence of
such a law.

If Congress, were to pass such a law, I would hope that they would not grab jurisdiction over every computer
on the theory that they all eventually enter the internet. But they very well could reach that conclusion. If
they did they would take the position that a computer is an instrumentality of interstate commerce. The
Mississippi River is a channel of commerce, riverboats are instrumentalities. By analogy then, the internet is
a channel and computers could be considered an instrumentality. If they took that approach Congress could
regulate all computers.

Question from DANIEL SILEO:


Dr. Farris, would do you think would be the outcome of the case had the case only been decided on racial
discrimation grounds, which the Court did not address?

Answer from DR. FARRIS:


Racial discrimination was not an issue in the case. The only issue was the right of a group of lawyers to urge
people to file lawsuits for a political objective. It should not make a difference what that objective was in the
outcome of the case. Did the fact it was the NAACP help the outcome? Probably, but it shouldn't make a
difference since it should be decided on legal principles.

Question from JOSIAH HINTERBERGER:


Dr. Farris, I believe that you mentioned in the Marsh v. Chambers audio lecture that atheism in schools
amounted to a violation of the Establishment Clause. If that is the case, then consider the following situation:

A public school teacher is also a catholic priest. At the beginning of class, he requires each student to pray
an “Our Father” and a “Hail Mary”, as well as worship by singing the doxology.

Is that a violation of the Est. Clause?

Answer from DR. FARRIS:


That would also be a violation of the Establishment Clause. Any time a person is coerced by the government
to perform a religious act, it is a clear violation of the Establishment Clause. You could change the facts to
having a Baptist pastor as the teacher and he requires the Lord's Prayer and singing two verses of Just As I
Am, and the outcome is the same. Religious coercion is always a violation of the Establishment Clause.

Question from ALICIA McCLURG:


Dr. Farris, I know that all legislative power was given to Congress in the Constitution, and that they should
not delegate that authority to another person, organization, or department. But how do you separate an
unconstitutional delegation of power and "fill-in-the-blanks" legislation? Why would one be unconstitutional
and the other would be acceptable? In other words, when does it become an unconstitutional delegation of
authority?

Answer from DR. FARRIS:


This is a matter of judgment and since the Court has never adopted this standard there is not a history of
case law to develop the principle. But, to me the issue is whether the decision is a policy question (how
much wetland does it take to be a federally protected area) vs. a ministerial question (what day should the
forms be turned in).

Question from JOSIAH HINTERBERGER:


Did the founders intent our current system of judicial precedent in constitutional law, where lower courts rule
by the precedent of higher courts instead of looking at the Constitution for themselves?

Answer from DR. FARRIS:


This is difficult to answer with a quick quotation from some source. The founders were used to judges under
the common law. In that system, judges make the law. And precedent binds and develops. But, they did not
create the common law system in the federal courts. So, federal judges weren't intended to have common
law judicial law-making power. But, the use of precedents was perceived to be a part of the rule of law.
However, your question is what happens when the precedent is in violation of the original meaning of the
Constitution? There is no doubt in such cases, precedent is never supposed to control in such a case.

Question from JOSIAH HINTERBERGER:


In your audio lectures, you have referenced "the oppressive regime of campaign finance laws". In what way
are they oppressive? Are they unconstitutional? If you were to have it your way, how would campaign
finance laws be set up?

Answer from DR. FARRIS:


I do not think that candidates like Romney should be able to spend unlimited sums of their own money while
average guys are stuck with raising money $2300 at a time from people. It is incredibly hard to raise
$100,000,000 in units of $2300. This allows the mega-wealthy an unfair advantage in politics.
I think there should be no limits on donations with full disclosure of who is giving to whom.

Question from JOSIAH HINTERBERGER:


Though Madison advocated the view that the general welfare clause was a limit on other enumerated
powers, Story, Hamilton, and Monroe were in favor of a far more liberal interpretation. Where can I find
documentation showing that the view of Madison was the prevailing one at conventions? Also, how in the
world did Hamilton and the others get such a wacked-out view of the General Welfare clause?

Answer from DR. FARRIS:


You would have to read the ratifying conventions for yourself to get the full answer. They are generally
available online for free. But, if you simply read the various ratifying resolutions of a number of states, the
answer comes pretty clear. The founders thought they were giving strictly enumerated powers.
http://www.yale.edu/lawweb/avalon/constpap.htm has all of them conveniently located.

Question from JOSHUA MAGEE:


#1. A case came before the SCT recently about voter ID. I think requiring picture ID for voters would make
sense to make sure only eligible people vote and all, but I have a hard time reconciling that with OI, since
photographs didn't exist when the constitution was adopted.

#2. A case came before the SCT recently about the death penalty. What I would think as my first guess is
that the court should say that the method of killing was fine since it appears to be as humane as hanging,
which I believe was the standard method of execution at the time the constitution was adopted. Am I right
about what the SCT should do? (Now, personally, I'm not in favor of hanging as a method of execution for
various reasons, but personal preference is unrelated to OI. Also, I think the SCT will do something different
from what it should do.)

Answer from DR. FARRIS:


1. Original intent cannot be limited to technology that was in place in 1789. Original intent is: What did the
words of the Constitution mean to those who wrote and ratified them?
The original intent approach would be this: Was it considered a violation of the rights of a voter to prove who
he was when the Bill of Rights was written? The fact that a driver’s license is used as the proof is irrelevant.
The issue is whether proof could be required. I have not done the historical research on this but I cannot
imagine a voter winning such a challenge under original intent.

2. There is no doubt that a person could be hung or shot and it would be consistent with original intent. I
don't know enough about the science of lethal injections, but if it is only a momentary discomfort, I don't see
there being a true 8th Amendment violation.

Question from JOSIAH HINTERBERGER:


I remember you talking about legal solicitation laws--would you think it good to return to the policy of not
allowing legal solicitation? Is the problem of 'ambulance chasers' really as bad as people say?

Answer from DR. FARRIS:


I think the law should allow such solicitation. I think that the public should be wise enough to never hire a
lawyer who does so.

Question from JOSIAH HINTERBERGER:


I think I recall the SCT describing a case where they mandated that people of the LDS religion (Mormons)
must obey state regulations on polygamy. Following OI, is that a well made decision?

Answer from DR. FARRIS:


I think it is consistent with original intent. Religious freedom was never intended to allow you to violate the
consensus moral law of the founder's era--which is to say, the moral law of the Bible.

Follow-up question from JOSIAH HINTERBERGER:


So basically, we have religious freedom in the US only inasmuch as it lines up with the religious beliefs held
by the founders?

Answer from DR. FARRIS:


Sort of. The founders wanted religious freedom for all faiths--Christian and non-Christian alike. However, the
question you pose is what are the limits on religious freedom? Can a person violate the law in the name of
his or her religion? This question depends on the nature of the law. The law once forbade preaching without
a license. Such laws are clearly unconstitutional. The law forbids murder. No theory of religious freedom
would allow murders to be justified. There are a great many laws in between these two examples.
My theory is that religious freedom was never intended to justify violation of laws that were malum in se
criminal laws at the common law (outside of any laws regulating heresy, etc.) These are true crimes. Today,
anything can be made a crime. (Truancy, air pollution, etc.) I do not believe that religious freedom can be
ever the justification for true criminal acts. But, modern criminal acts must be subjected to a balancing kind of
test.

Polygamy was considered a malum in se crime at the common law. Religious freedom would never justify
polygamy.

Question from JOSIAH HINTERBERGER:


As I'm reading our Wyman v. James chapter, I'm slightly confused. If the action in question wasn't a search,
then how can we say that the government had conditioned the access to a privilege with the giving up of a
right? (You compared it to requiring home-schoolers to wait until they were 18 to get their driver's license.)

Answer from DR. FARRIS:


I disagree with the Court when it says this is not a search. The only reason it plausibly is not a search is
because she had the ability to tell them to stay out. But, the price for saying this was that she lost the
privilege of getting welfare. To me, any time the government wants to come into your home for a compliance
check, it is a search--period.

Question from JOSHUA MAGEE:


How do we decide how much education a child has the right to, since it's not written in the constitution? Here
in Mississippi, there are no laws about it. I'm not kidding--all you have to do is say you're home-schooling
your kids, and you aren't required to show anything else. (Right now they are discussing a bill that would be
able to make sure the kids are learning something, so it probably won't be that way for too long.) Although
this is an extreme, I think it could easily be too much the other way in some states. Where is the proper
constitutional balance?

There are lots of other rights I wonder about sometimes, like, the right to travel. You have to pay a fee (like
$2.50) to get out of the US on the way to Mexico. This probably is not violation, but, where do you draw the
line? I see these "unwritten rights" must be very fuzzy. It was common for teenage boys to join the army
without the express will of their parents at the time of the constitution. Is that an unwritten right, then?

Answer from DR. FARRIS:


There is no valid constitutional right to education. Think about it. A right involves a limitation on the use of
government power. The "right" to education is a claim for government services. It is important to keep our
terminology straight. Education may be considered an entitlement but never a right. (In liberal human rights
theory, which is based on socialism, education as well as many other government services is a right.)

The Mississippi question you pose is about the duty of parents to provide an education for their children. The
Mississippi system is close to ideal. There is no advance demand on the parents to register or jump through
hoops of a bureaucratic nature. Education is treated the same way as food. A parent has a duty to furnish
food to a child; but there is no prior restraint system requiring parents to pre-file their menus with the
government. Nor is there a magical formula for what kind of food is necessary. Rather, there are simply
generalized rules that children need sufficient nourishment. The same system is in place for education in
Mississippi. If a parent doesn't give a child a proper education, he can be held responsible after the fact just
as he can be held responsible for failing to give the child food.

This is how a system with balanced freedom and responsibility should work.

Even though there was an aberrational decision in the Warren Court era, I do not believe there is anything
like a constitutional right to travel. If you mean "no discrimination when you move from state to state"--that is
not the right to travel but rather specific rules contained in Art IV Sec 2.
Question from DAVID CROSS:
My dad told me about this group called “We the People”. (http://www.wethepeoplefoundation.org/) I have an
inkling that they have libertarian leanings, so it isn't perfect and there might be other problems with them as
well.

However, the one of the main things they do is petition the government for redress of grievances. You can
find this right in the First Amendment. Apparently, they seem to think this is one of the most important rights.
That being said, it is in the Constitution. Is it that important though? I mean, you can petition our current
government all you want and they won't necessarily do anything. The Constitution doesn't say that the
government has to do anything in response. So what do you think?

Answer from DR. FARRIS:


I looked at this group's website. First of all, I do not trust any organization what does not tell you who its
leaders are on the section "About us." When all it gives you is an organizational name and a bunch of
blather, beware!!!

The law suit they are pursuing seems entirely bogus to me. I don't think they have a chance in the world of
winning.

The right to petition for redress of grievances means that if you send the government a complaint or a
request, the government cannot use that as a basis for taking harmful action against you. Example: King
James (the reprobate King) received a petition from about 1000 Puritan pastors around 1608. He held a
conference to consider their petition. He used the petition as a weapon against these Puritans and said that
they would lose their jobs or their heads if they didn't give up the ideas represented in that petition. That is
the exact kind of thing our First Amendment was designed to prevent.

Question from DANIEL SILEO:


I have several adult friends with whom I debate politics regularly. Two of them are Christians but also
Libertarians...I know you have spoken about the Libertarians on your lecture, about how they start out with a
presupposition that God does not exist, that man is the answer to man's problems, etc. I have used this
argument in debating with them, but...there are other arguments I don't really know how to answer. I know
that there is a fundamental difference between arguing Constitutional principles and political philosophy. For
example, I know how to argue against Lawrence v. Texas using the 14th Amendment and history, but I don't
know how to argue that the government has the right to legislate that kind of thing. My friends used the
argument about drugs - "well, it should be ok if it doesn't hurt anyone else." I said, "Well, drugs do hurt other
people - you're more likely to kill someone when you're high, and drugs break up families, etc." He said,
"Well, working too much breaks up families - does that mean we shouldn't work?" I don't know how to argue
against that...my guess would be to show the moral principles on which this country was founded on...and
how all government is based on legislating morality. Could you help me out - I really want to help these guys
understand how treacherous it is to be a Christian and be a member of the Libertarian party...HELP!!?!?

Answer from DR. FARRIS:


Debating with Libertarians is a lot like teaching a pig to sing. It is likely to waste your time and may well
annoy the pig.

Any debate with Libertarians has to deal with the foundations of their belief and not the application of their
belief to particular issues. If we are debating harms, we have accepted their premises and they will have the
superior position in the debate.

The core question is: “what is the purpose of government?” Can government legitimately act for the common
good? Can the government protect moral principles for their own sake--actually in the belief that the moral
fabric of the society is a legitimate interest of the government?
True libertarians do not believe in public parks or libraries or schools or any kind of government services of
this sort. They do not believe in the common good, only the individual good. Government exists only to
protect the individual's right to life, liberty, and property.

This presupposition cannot be found in the Bible. The Bible makes it clear that one of the purposes of law is
a school master to teach right and wrong. Libertarians would never agree with such a goal. Prostitution would
be an example of that. Libertarians would allow prostitution to be legal. Biblical moralists would never allow
such a practice because it is harmful to the community. Indeed, in the book of Leviticus it says that certain
kinds of sins make the land itself polluted and eventually vomits.

The purposes of government include the protection of life, liberty, and property. But it also, in the words of
the Constitution exists to promote the common good and general welfare. Libertarians do not believe that.
Thus, despite the claim of many to be constitutionalists, if they reject the very goal of the Constitution how
can they make such a claim?

Question from DAVID CROSS:


A couple days ago, my dad and I went in to the post office to mail something. While we were waiting in line, I
saw a sign in the window saying something about men ages 18-25 registering with the Selective Service. I
didn't know what it was talking so I asked my dad. He said that it was to prepare for a draft. Like make it
easier for the government to find all the men when it needs to draft them.

So, I looked it up online and found their website. http://www.sss.gov/Default.htm I found out every guy has
to register and it is considered a felony if you don't. I have this "gut feeling" that it isn't, or shouldn't be
constitutional.

I've tried to think of it in accordance with original intent. For instance, there were militias in the early US, but
they didn't go overseas. The militias were also organized by the states not the federal government.

I don't know, it just doesn't seem right. Our nation is a democratic republic-we are free men. I don't think it
was intended that if our government got us in a war we didn't want to be in, they could force us to fight for
them.

Answer from DR. FARRIS:


Free men fight for their nation. From the earliest days all men in the US (between 18-44) were considered
part of the UNITED STATES (i.e. federal) militia. This was not just for those who volunteered. All men were
part of the military force of the US regardless of whether you signed up as a volunteer. It is the duty of a
citizen.

We are not subjects who have no voice or rights. We have rights. We have a voice. We have duties. One of
these duties is to pick up a gun and defend this nation.

Go register when you are 18 with a clean constitutional conscience.

Question from LEVI MIRA:


[Roberts v. Jaycees] is kind of throwing me. I can not figure out if it was members of the Jaycees that were
denied membership filed constitutional claims, or if it was the MDHR. I think it was the women but it doesn't
specify on the case.

Answer from DR. FARRIS:


It is a little confusing because there was a flurry of filings between the parties. Two chapters of the Jaycees
had been violating the rules of the Jaycees by admitting women. These chapters were immediately
sanctioned by the national office of the Jaycees for this action. These two chapters filed a complaint with the
Minnesota Department of Human Rights that the national Jaycees were violating the state law which
prohibited discrimination on the basis of gender. Before there was a hearing on this state complaint, the
national Jaycees filed suit in federal court against the Commissioner of the MDHR alleging that the state law
as applied to them violated their freedom of association. The state case wound its way through the state
system resulting in a victory for the two chapters and the MDHR and a loss for the national Jaycees. The
national Jaycees then renewed their federal complaint that ended up in the Supreme Court of the United
States after working its way through the federal system. The only reason that it was permitted to have both a
state and federal case was that the federal suit was filed before any meaningful action had taken place on
the state case.

Question from ALICIA McCLURG:


What is available on the grassroots level to aid passing and ratification of a parental rights amendment?

Answer from DR. FARRIS:


Go to www.parentalrights.org

Get everyone you know to go to this website and sign up to be a citizen co-sponsor. We need 3.4 million
citizen co-sponsors to reach our goal. If each of you in this class would get just 34,000 people to sign up we
would be there. Or, if we got all members of HSLDA to get 40 members, then we would be there. Try getting
40 people to sign up--you will be a hero.

Question from DANIEL SILEO:


I have a couple different questions regarding rights...
(1) What are some examples of a "regular" right?
(2) Is the right to privacy in Roe v. Wade fundamental or normal according to the SCT?
(3) What is the right in Lawrence v. Texas?...And is it fundamental or regular?

Answer from DR. FARRIS:


1 Property rights are non-fundamental.
2. Fundamental.
3. Non-fundamental. But they held that the promotion of morality was not a legitimate government purpose
so that the laws failed the most basic test. It is quite a condemnation of moral legislation.

Question from DANIEL SILEO:


Who can file an amicus brief in a Supreme Court case? Do you have to be recognized in some way or can
anyone file one?

Answer from DR. FARRIS:


Anyone can file an amicus brief. However, you must obtain: EITHER
a. the consent of all parties, OR
b. the consent of the court.
Nut cases who want to file blather have a hard time satisfying this standard.

Question from MATTHEW HODGES:


I just got done watching a movie called "The Pelican Brief"; in it during a law class they discuss Bowers v.
Hardwick (this is before Lawrence). Anyway something that they, as well as some things I saw when I
reviewed Lawrence made me think of this. In Lawrence it says something to the extent that sexual behavior
is the most private human conduct, and that the home is the most private of places. Not to be sick but, if
consensual incest of adults was going on in their house, is that protected by Lawrence? Aren't there laws
against incest?
Answer from DR. FARRIS:
Lawrence is very bad. Incest can be clearly punished if a child is a victim. But with two adults, Lawrence
throws the question open and if they are going to be consistent, then incest between adults has to be ok.
Yuck.

Question from JOSIAH HINTERBERGER:


The "Bipartisan Campaign Reform Act of 2002" banned broadcast advertisements that name a presidential
candidate within 60 days of a the election if they're payed for by corporation money. (Even if the corporation
is non-profit) I heard about it on a focus on the family commentary recently and it made me wonder: How
does this jive with the right to free speech?

Answer from DR. FARRIS:


The SCT thinks this law is constitutional. I don't.

Question from DANIEL SILEO:


What do you think about gun control? I don't know what to think - some people say it should be absolute - I
don't think that's right though. Just like freedom of speech is not absolute (or should it be?)...What if
someone interprets the 2nd Amendment literally to the extreme...and has fifty AK-57s on their yard?

Answer from DR. FARRIS:


The big debate on the Second Amendment is whether or not it is an individual right (as opposed to a
collective right). The prefatory clause of the Second Amendment (which talks about the need for a militia)
leads some to believe that it is only a collective right--that is a right of the states to have militias. The second
issue is: Even if it is an individual right, is it a fundamental or a non-fundamental right?

I believe that original intent analysis (as done by the DC Circuit in the recent case) shows that the Second
Amendment protects an individual right and that this right is fundamental. Fundamental rights are not
absolute--but they are strong.

The overarching purpose of the Second Amendment was to be sure that citizens had weapons to suppress
tyranny. I think this yields a nearly unlimited right to possess personal weapons. However, the definition of
personal weapons (comparing it to the weapons possessed by militia members in 1791) would not give an
individual the right to have rocket launchers or tanks or nuclear warheads. But, I think the right to have all
manner of rifles and handguns would be protected. This assumes we are talking about citizens who are not
convicted criminals.
B. Quiz Questions

Question from SARAH MILLER:


I took Quiz 8 and missed #1. I don't understand why the answer is what it is... I don't really understand why
all of the options couldn't be correct...could you explain?

Answer from DR. FARRIS:


Congress does not have the power to enact ordinary criminal laws. Re-read Article I; Section 8 of the
Constitution which lists most of its powers. You will see that there is no power to enact normal criminal laws.
The answer about banning violence against children describes a normal criminal law. Only the states
possess the power to enact such a law.

Follow-up question from SARAH MILLER:


So the other laws that Congress could pass (hypothetically speaking, from the quiz options), would be strictly
national laws, not common laws? I'm not sure I understand exactly...

Follow-up answer from DR. FARRIS:


It is better to think in terms of criminal law rather than common law. Common law has both civil and criminal
components and it is just too complicated for our purposes. Congress has no power to enact ordinary
criminal laws. Murder, theft, burglary, etc. cannot be outlawed by Congress if we are talking about ordinary
crimes. Murder of a federal official or theft of government property would be different. But ordinary crimes
are the business of the states not the federal government.

Question from ALICIA McCLURG:


I took the quiz 6-7, and I missed questions 1, 4, and 5. I understand 4 and 5 now, but where do you find
question 1's answer? In the textbook, or the recorded lectures, or...? There were two choices that seemed
right to me, so I chose that one, and the right answer was the other. I'm a little confused.

Answer from DR. FARRIS:


The answer comes from inferential reasoning. The three wrong answers were clearly discussed at the
Constitutional Convention (see pages 79-81). Also, there is a provision in the Constitution that directly
relates to all three of the wrong answers. However, the establishment of religion is a phrase that is not found
in the original Constitution. It is found in the Bill of Rights. The Bill of Rights was debated in the First
Congress, not the Constitutional Convention.

Question from DAVID RING:


The second question on quiz 12 bothered me in particular and I wondered if you could explain what exactly it
means since I haven't been able to decipher the original wording.

Answer from DR. FARRIS:


I am sorry that you find the questions confusing. You are entering an area (law) that requires precise thinking
and precise use of terms. It requires you to notice subtle differences in terminology. Also, this is advanced
material. There is no way to "dumb down" constitutional law. Having said that, you are not clear as to what
you found confusing about this question. The passages that discuss the relevant material are found starting
at the bottom of page 161 through page 163. I will break it into pieces.

The Court said that the Union existed before the Constitution....this means that the Union (the United States
of America) came into effect before the Constitution. I have no idea why this should be confusing since you
should know that the US existed at least since the Declaration of Independence.

Even before the Declaration.....this was the part that might be new information for you, but it seems clear to
me. The states begin to act as a union before they issued the Declaration of Independence. This was clear
in the Court's discussion and you should have known the basic facts already. After all, we started fighting in
April 1775, the Continental Congress was in full swing, etc.

The Court's assertion---that is that the Union existed before the Constitution and Declaration--related
to....and you must pick the correct choice by reading the relevant material.

Question from SARAH GUTIERREZ:


I just answered the last question to Quiz 10 incorrectly. Where could I have found the answer in the
Constitution, before I got the question wrong? I've looked and I can't find it.

Answer from DR. FARRIS:


This involves inferential reasoning. It is not a matter of just looking up the answer as you would if someone
asked you: How old do you have to be to run for president. If you look through all of the choices, you should
be able to eliminate all of the others based on things you already should have learned from the cases or by
common sense. For example, common sense should tell you that D isn't true. The constitutionality of an Act
of Congress cannot possibly depend on how many votes are cast in each house.

Question from ALICIA McCLURG:


Dr. Farris, in quiz 27, over People v. DeJonge, the fourth question asks, "After this case was decided, could a
public school principal be required to obey the state law that he could only have certified teachers in the
classroom (the very same law under which the DeJonges were prosecuted)?" So it is asking "could a public
school principal be required to obey the same law under which the DeJonges were prosecuted". I
would have said no, because according to the second paragraph under part I of the court's decision, the law
under which the DeJonges were prosecuted was a regulation of "state-approved nonpublic schools".
However, that wasn't an answer option. Could you explain this to me?

Answer from DR. FARRIS:


You are technically correct. However, the intended meaning of the question is: Could a public school
principal be held legally accountable for failure to follow a state law that required him to hire only certified
teachers? I will make changes in the question to eliminate any confusion.

Question from HEIDI SCHREIBER:


I just took quiz 32 and was kind of confused by one of the answers. The last question is: “The majority in this
case claims that its decision is consistent with Roe v. Wade. Four judges strongly dissent. Who is right and
why?” The answer you gave as right is:

b. The dissent. Both abortion and homosexual conduct should be protected because liberal legal scholars
think the court should label them both as fundamental rights.

I'm sorry. I really don't understand why that would be the right answer. I thought OI would say that both
abortion and homosexual conduct should NOT be protected. I don't get why the correct answer is b. I'm
sorry- I may be just reading the question or answer wrong or not understanding its meaning or something,
but would you mind explaining this to me??
Student input from ALICIA McCLURG:
I think that the question is, If Roe's precedent were followed, what should Bowers' rule have been? The
majority claimed that Roe's precedent was followed, but came up with an inconsistent ruling. The dissent
says, if Roe's precedent had been followed, then Bowers should have protected homosexual conduct. And
the dissent is right - if the SCT had followed Roe, then Bowers would have been decided differently. Probably
you could ask the question this way... "Which is consistent with Roe - the majority or the dissent? Why?"

Answer from DR. FARRIS:


Alicia was right. The question asks: Is Bowers consistent with Roe v. Wade? I think Bowers was inconsistent
with Roe v. Wade. I think Bowers was right and Roe was wrong (under original intent) but I don't think it is
possible to embrace the legal principles of Roe and not also reach the conclusion of favoring homosexual
rights. When the majority pretends that you can support abortion rights yet oppose homosexual rights, I think
they are kidding themselves. Eventually, the Court reached that same conclusion in Lawrence.

Question from MICAH NEIDHART:


Quiz 33, question 2:
"The rule in this case is likely to have any of the following applications EXCEPT:
a. Prostitution may become a constitutional right.
b. Pornography may become a constitutional right.
c. Same-sex marriage may become a constitutional right.
d. Drug sales (i.e. LSD or marijuana) may become a constitutional right.”

In the Constitutional Law Audio CD (5:45 - 6:30)it was specifically stated that Drugs, Prostitution, and
Pornography are laws based purely on "morality". Based on that, I incorrectly assumed that the only option
not mentioned on the CD(same-sex marriage) had to be the correct answer. Could you please explain the
reasoning behind this question?

Student input from JOSHUA MAGEE:


I think what Dr. Farris was meaning on the CD is that those laws truely are based on morality, but the SCT
would say that the drug laws are not based on morality. The SCT would agree that the other three are based
on morality, and therefore would incorrectly say they are unconstitutional.

Answer from DR. FARRIS:


Right. Drug SALES would probably be viewed as harming another. The rule is: A law can only be justified if it
aims at preventing harm to another. (I disagree with this rule; but this is what the court is saying.)

Question from LEVI MIRA:


I have a question about quiz and chapter 33. I cannot figure out why the court discussed acceptance of
homosexuality in foreign courts such as in Europe. I don't know if they were trying to say that because moral
views are changing, in Europe and other places, that the USA needs to accept different views.

Answer from DR. FARRIS:


I think we touched this in one of the chats, but putting the best face on it: The court was responding to
statements in the Bowers majority that the standards of Western Civilization supported the view that
homosexuality was immoral and should be illegal. They looked at modern Europe to prove that Western
Civilization has shifted. However, this proves nothing. The issue was what were the standards in place in
America in 1868? America was a part of Western Civilization at that time and to the extent those views AT
THAT TIME help define America in 1868 then ok; but the only issue is this: In 1868 did the word "liberty"
include the right to practice homosexuality?
C. Senate Testimony

United States Senate Committee on the Judiciary


Subcommittee on the Constitution, Civil Rights and Property Rights

Subcommittee Hearing on
“What is Needed to Defend the Bipartisan Defense of Marriage Act of 1996?,”

September 4, 2003
226 Dirksen Senate Office Building
2:00p.m.

Testimony of Michael P. Farris


President, Patrick Henry College

The task I have undertaken today is an aspect of legal practice that is difficult at best. I am called upon to
make predictions about what may happen to the federal Defense of Marriage Act in light of predictable legal
challenges to its constitutionality. The maxim of the stockbroker seems appropriate, “Past performance is no
guarantee of future results.” But lawyers for private clients are often called upon to predict what may happen
in the course of litigation so that their client can assess the risks they are about to assume.

No one can say for certain what the outcome will be of constitutional challenges to the Defense of Marriage
Act. As much as I would like to see it held to be constitutional, and while I can construct a credible legal
argument to support that outcome, a lawyer must give weight to other factors to make a reasonable
prediction of what may happen. These other factors certainly include trends in the law and the dominant
scholarly view of the issue at hand.

The constitutionality of the Defense of Marriage Act cannot be seriously challenged until one state legalizes
same-sex marriage. Thus, the fact that DOMA has not been judged unconstitutional to this point tells us
nothing about its long-range prospects when faced with a proper legal challenge.

It may be instructive to review the circumstances which are required before a proper challenge to DOMA can
be raised. If the Supreme Judicial Court of Massachusetts, the Supreme Court of New Jersey, or the
supreme court of some sister state, rules that same-sex marriages are required under their respective state
constitutions then the stage is set. Couples who are married in the wake of one of these rulings will then
seek to move or return to another state and have that marriage recognized. If the second state wants to
recognize that same-sex marriage, DOMA does not prevent such recognition. However, it the second state
refuses to recognize the out-of-state same-sex marriage, then the argument will be raised that the Full Faith
and Credit Clause requires its recognition. The state will then employ DOMA as a part of its defense against
such a constitutional challenge.

If we assume that a proper challenge is mounted, what then is the likely outcome?

Again, I can argue, and do below, that DOMA should survive such challenges. But let us consider the legal
trends and the dominant scholarly view as criteria for judging what the courts are likely to do on this issue in
the foreseeable future. I will consider these two categories separately.

A. Legal Trends

The flow of a river might be an appropriate metaphor to assess the strength of a legal trend. Six months ago,
the legal trend in favor of a successful constitutional challenge to DOMA might well be described as a small
stream. The principle case in this era was Romer v. Evans, 517 U.S. 620 (1996). In Romer, the voters of
Colorado enacted an initiative that limited the ability of citizens to obtain legal protections in civil rights laws
on the basis of sexual orientation. The Supreme Court held that this law was based upon a clear animus
toward homosexuals and violated the principles and requirements of the 14th Amendment’s Equal Protection
Clause.

It is one thing to hold that a recent law with a particular political background possesses such a clear and
intentional animus. It is quite another thing to hold that a state’s marriage law that has been on the books for
decades if not centuries possesses the same unconstitutional animus.

As we shall see in the next section, the legal commentators jumped to the conclusion that Romer presaged
or required judicial rulings in favor of same-sex marriage and against the constitutionality of DOMA. But a
careful lawyer would look upon such predictions with a decree of skepticism because Bowers v. Hardwick,
478 U.S. 186 (1986), was still good law and was not explicitly reversed by Romer. A distinction could be
made. Romer was about political rights, not gay rights. Bowers held that there was no constitutional right to
engage in homosexual sodomy and therefore the law stood with long-standing traditions of marriage as a
uniquely heterosexual institution.

That was before June 26, 2003 when the Supreme Court released its opinion in Lawrence v. Texas, 123 S.
Ct. 2472. The legal trend is no longer a small stream. It is a river raging with floodwaters, and not just any
flood, but the hundred-year flood against which all future events will be judged.

At issue in the Lawrence case was the nature of liberty as set forth in the due process clause of the
fourteenth amendment. In considering whether this clause of the Constitution was violated by the Texas
statute, the majority, quoting from a dissent from Justice Stevens in an earlier case, declared that “the fact
that the governing majority in a State has traditionally viewed a particular practice as immoral is not a
sufficient reason for upholding a law prohibiting the practice.” Lawrence, 123 S.Ct. at 2475.

Let me put this proposition another way: the Supreme Court has determined that the traditional views of the
majority of the people of this country are not good enough to justify our law. I should note at this point that
this now largely irrelevant majority was the same majority which drafted, ratified, and from time to time
amended the freedom-granting constitution the court is interpreting. If you think about it, this is astounding.
Under the “reasoning” of the court, how can we know with any certainty what is legally right and what is
legally wrong? How can we know what our Constitution, or any of its amendments, really means? How will
we know what will be persuasive in a court of law?

In the Lawrence case, the majority notes that the European Court of Human Rights did not follow our earlier
jurisprudence, but followed its own decisions.
Lawrence, 123 S. Ct. at 2483. (citing Dudgeon v. United Kingdom, See P. G. & J. H. v. United Kingdom, App.
No. 00044787/98, ¶56 (Eur. Ct. H. R., Sept. 25, 2001); Modinos v. Cyprus, 259 Eur. Ct. H. R. (1993); Norris
v. Ireland, 142 Eur. Ct. H. R. (1988)).

Are we now to turn to Europe to ascertain the nature of our own constitution? If we cannot turn to our own
heritage and the intent of the drafters of our constitution and its amendments, where really can we turn at all?
What is left as the basis of law other than what the judges feel on a particular day?

And this is why none of us here can say with any certainty what the future of DOMA really is.

The dramatic change in the flow of water in this particular stream has been noted by both those who support
and those who oppose the Lawrence decision. MNSBC reported:

Speaking shortly after that ruling, Elizabeth Birch, the executive director of the leading gay rights
advocacy group, the Human Rights Campain, said, “Every once in a while in the history of a people
there is a monumental paradigm shift. …it allows for a breakthrough to a deeper understanding to a
nation as a whole. I believe we are in such a gay moment in terms of history.

Matt Foreman, the executive director of the National Gay and Lesbian Task Force wrote:

In just a few short weeks, the confluence of legal marriage in Canada, the Lawrence v. Texas
decision abolishing sodomy laws, and the expected marriage ruling from the Massachusetts
supreme court has dramatically altered the national and intra community debate about our lives, our
families, and our legal rights.

But the most dramatic prediction of the impact of Lawrence is found in the pages of that decision in Justice
Scalia’s strong dissent.

One of the benefits of leaving regulation of this matter to the people rather than to the courts is that
the people, unlike judges, need not carry things to their logical conclusion. The people may feel that
their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but
not strong enough to criminalize private homosexual acts--and may legislate accordingly. The Court
today pretends that it possesses a similar freedom of action, so that that we need not fear judicial
imposition of homosexual marriage, as has recently occurred in Canada (in a decision that the
Canadian Government has chosen not to appeal). See Halpern v. Toronto, 2003 WL 34950 (Ontario
Ct. App.); Cohen, Dozens in Canada Follow Gay Couple's Lead, Washington Post, June 12, 2003, p.
A25. At the end of its opinion--after having laid waste the foundations of our rational-basis
jurisprudence--the Court says that the present case "does not involve whether the government must
give formal recognition to any relationship that homosexual persons seek to enter." Ante, at 17. Do
not believe it.

There is a recognized branch of Full Faith and Credit law that has been directly and seriously undermined as
a result of the decision in Lawrence. States have not been required to recognize decisions or decrees of
other states if a strong state public policy interest prohibited such recognition. The constitutionality of
Congress’ powers under Article IV to enact DOMA is also in accord with the wide-spread view that even
absent congressional action, there is already a "public policy" exception to the Full Faith and Credit
requirement. According to the Restatement (Second) of Conflict of Laws Sec. 283 (1971), a state that had a
"significant relationship to the spouses and the marriage at the time of the marriage" need not recognize a
marriage if the marriage contravenes "the strong public policy" of that state.
In Lawrence, the Supreme Court adopted the utterly unprecedented notion that a law cannot be held to be
constitutional in the face of a substantive due process challenge if the state’s interest in enacting the law was
nothing more than traditional morality.

While lawyers can make arguments about anything and find state interests that never entered the minds of
the legislators who made the law, any honest person would say that laws prohibiting same-sex marriage, just
as laws prohibiting bigamy, were based on traditional majority views of morality.

Accordingly, it will be difficult for a court to accept an argument asking for a public policy exception to the Full
Faith and Credit Clause when that public policy is based on a motivation that has been labeled by the
Supreme Court as violative of Equal Protection.

Let me be clear about my own views of proper constitutional interpretation, which is quite a different inquiry
from what is predictable outcomes of constitutional litigation.
The Supreme Court in Lawrence cannot plausibly be said to have interpreted the 14th Amendment in a
manner that is consistent with the original meaning of the words that compose the clauses of that
Amendment.

The Bowers Court got the history right. The power of the states to legislate regarding sexual crimes outside
of marriage was unquestioned at any relevant point in American history. To be sure there were contrary
theories of history presented in briefs of the amici in Lawrence that were largely accepted by the Supreme
Court.

The idea that anti-sodomy legislation is of recent duration and a change from a much more tolerant era of the
late 1700s and early 1800s is nothing more than a mix of advocacy and wishful thinking with a thin veneer of
Ivy League scholarship. Anywhere else it would be called “spin” and recognized for what it is.

The attitude of that era is far better captured in the following language by James Wilson, who said, “The
crime not to be named, I pass in a total silence.” James Wilson, 2 The Works of James Wilson (1967) (from
lectures given in 1790 and 1791).

This is not to say that the states were not free to adopt new positions on matters concerning homosexuality.
The political trends have been strongly in favor of the gay movement.

But the Supreme Court is not supposed to be a venue in which political trends are translated into judicial
edict. The theory of judicial review necessarily depends upon faithful adherence to the meanings and
intentions of the drafters of the Constitution and its amendments for any claim to legitimacy in a constitutional
republic.

Simply stated, in a democratic republic only the legislative branches may legitimately make law. New
political paradigms should never been accomplished by a judicial decision. When a court announces a
decision that is contrary to the intentions of the framers of the Constitution, it is engaging in raw judicial
legislation which any member of the founding generation would label as tyranny.

Only our elected legislative officials have the authority to make new law. Lawrence is new legislation in
diaphanous cloak of legal interpretation.

Only those people who value a particular transient political goal more than the preservation of American
democracy should be pleased with this outcome. Self-government is essential to the preservation of all of
our liberties. This nation was founded on the notion that self-government is essential to liberty. Establishing
a pet theory of liberty at the expense of the fundamental principle of self-government threatens the long-
range survival of our Constitution. The American people will not long accept the idea that fundamental policy
change can be made by anyone other than their elected legislators.

B. Law Review Analysis


Scholarly articles in the following law reviews have opined that DOMA is or may well be unconstitutional.
Anyone who knows the production schedule of a law review recognizes that all of these articles and
comments were written prior to the Supreme Court’s decision in Lawrence.

In the Nebraska Law Review, Paige E. Chabora argues that a textual interpretation of the Full Faith and
Credit Clause will necessarily result in a determination that DOMA is unconstitutional. Ms. Chabora
advances two theories: the procedures theory and the “ratchet” theory. The procedures theory is that
Congress may only regulate the procedures by which judgments and decrees are recognized and may not
regulate substantive law through this particular enumerated power. The ratchet theory is based on a
comment in dicta in a 1980 Supreme Court decision. Thomas v. Washington Gas Light Co., 448 U.S. 261,
272 n.18 (1980):

While Congress clearly has the power to increase the measure of full faith and credit that a State
may accord to the laws or judgments of another State, there is at least some question whether
Congress may cut back on the measure of faith and credit required by a decision of this Court.

Chabora concludes that DOMA is unconstitutional under both theories.

This “ratchet” theory is labeled “a powerful argument” in DEVELOPMENTS IN LAW AND POLICY: Emerging
Issues in Family Law, Michael T. Morley, Richard Albert, Jennie L. Kneedler, Chrystiane Pereira, 21 Yale L. &
Pol'y Rev. 169, 195 (2003).

Professor William Eskridge of Yale, who authored a prominent brief in Lawrence, predicts the ultimate
demise of DOMA in the New York University Law Journal. After describing a very modest path of the gradual
enactment of Vermont-styled civil unions, Eskridge says:

“Over time—perhaps a generation or two—enough states may follow this modest step to persuade the U.S.
Supreme Court to make it mandatory for the country. And at that point, if not before, DOMA's requirement
that federal law discriminate against same-sex couples will be constitutionally vulnerable.”
NO PROMO HOMO: THE SEDIMENTATION OF ANTIGAY DISCOURSE AND THE CHANNELING EFFECT
OF JUDICIAL REVIEW, William N. Eskridge, Jr., New York University Law Review, 75 N.Y.U.L. Rev. 1327,
1396 (2000).

The University of Pittsburgh calls DOMA “an embarrassment” and “the antithesis of a full faith and credit
measure.”
[LOVING THE ROMER OUT FOR BAEHR: ON ACTS IN DEFENSE OF MARRIAGE AND THE
CONSTITUTION, Mark Strasser, University of Pittsburgh Law Review, 58 U. Pitt. L. Rev. 279, 279 (1997).]

Capital University Law Review subjects DOMA to a scathing analysis calling it a “mean-spirited enactment”
but reserves the final conclusion as to its constitutionality to the reader.
[Some Observations about DOMA, Marriages, Civil Unions, and Domestic Partnerships, Mark Strasser,
Capital University Law Review, 30 Cap. U.L. Rev. 363, 366 (2002).]

The University of Pennsylvania Law Review doubts that DOMA represents “general legislation” that is,
according to the article, a requirement for any proper use of the Full Faith and Credit Clause.
[THE MEANING OF "GENERAL LAWS": THE EXTENT OF CONGRESS'S POWER UNDER THE FULL
FAITH AND CREDIT CLAUSE AND THE CONSTITUTIONALITY OF THE DEFENSE OF MARRIAGE ACT,
Julie L. B. Johnson, University of Pennsylvania Law Review, 145 U. Pa. L. Rev. 1611 (1997).]

The New England Law Journal opines that DOMA violates the equal protection value of the Fifth’s
Amendment’s Due Process Clause.
[The Constitutionality of the Defense of Marriage Act in the Wake of Romer v. Evans, Barbara A. Robb, New
England Law Review, 32 New Eng.L. Rev. 263 (1997).]
The University of Kentucky Law Review says: Because the words of DOMA, at least regarding interstate
recognition, are permissive rather than mandatory, the statute appears to offer nothing beyond a "sense of
Congress" which is non-binding.”
[Vermont Civil Unions, Full Faith and Credit, and Marital Status, Lewis A. Silverman, Kentucky Law Journal,
89 Ky. L.J. 1075, 1099 (2000).]

Finally, the Michigan Journal of Gender and Law, calls DOMA an unconstitutional establishment of
fundamentalist Christianity.
[DOMA: AN UNCONSTITUTIONAL ESTABLISHMENT OF FUNDAMENTALIST CHRISTIANITY, James M.
Donovan, Michigan Journal of Gender & Law, 4 Mich. J. Gender & L. 335 (1997).]

There are more articles to the same effect. The voices in opposition are essentially silent.

It is not a stretch to say that the dominant reviews in today’s law reviews will more than likely be the
dominant view in the courts within a generation. I am dubious that DOMA will survive even a few years. I am
absolutely certain that it will not last a generation.

II. In Defense of DOMA

I would like to see DOMA succeed. Setting aside, for the moment, my concerns over the changing nature of
law and its effect on predictability, I also think that, given a fair read, that DOMA is constitutional.

Marriage is one of the foundations which the majority of people in the United States cherish. Even the
Supreme Court has described traditional marriage as a "basic civil right." Skinner v. Oklahoma, 316 U.S. 535,
541 (1942). It is "fundamental to our very existence and survival" and being a revered institution "older than
the Bill of Rights -- older than our political parties, [and] older than our school system." Loving v. Virginia, 388
U.S.C. 1, 12 (1967).

Article IV of our Constitution provides that full faith and credit shall be given in each State to the public
proceedings of every other state, and that, and this is the critical issue: “Congress may by general Laws
prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof.”
Const. Article IV.

Of this clause, James Madison wrote:

The power here established may be rendered a very convenient instrument of justice, and be
particularly beneficial on the borders of contiguous States, where the effects liable to justice may be
suddenly and secretly translated in any stage of the process within a foreign jurisdiction. [The
Federalist, No. 42, at 271 (James Madison) (Clinton Rossiter, ed., 1961).]

Congress has only exercised its Article IV § 1 authority four times. In 1790, Congress codified the functions
of the Full Faith and Credit clause (28 U.S.C. § 1738). In 1980, Congress passed the Parental Kidnapping
Prevention Act (28 U.S.C. § 1738A). In 1994, the Full Faith and Credit Child Support Orders Act of 1994 (28
U.S.C. § 1738B) became law. Finally, in 1996, Congress passed DOMA.

Congress’s exercise of its authority to legislate under the Full Faith and Credit Clause has never been
successfully challenged in any court. Since there is no legal precedent by which the constitutionality of
DOMA can be measured, the best available standard is found in these prior acts of Congress.

The law of 1790 was merely procedural in character. It does not serve as a precedent for DOMA. However,
the 1980 and 1994 establish clear legislative precedents that demonstrate that Congress is fully within its
authority to enact DOMA.

Both of these prior enactments deal with disputes arising in the area of family law. Both of these statutes are
closely connected to the legal issues of marriage. The 1980 Parental Kidnapping Act was designed to bring
national uniformity to the recognition of child custody decrees. Citing a growing number of cases which
involved interstate disputes over child custody decrees and the alarming practice of “frequent resort to the
seizure, restraint, concealment, and interstate transportation of children,” Congress passed this law to
determine which decrees would be given full faith and credit.

Congress made a substantive policy decision child custody decrees would not be granted full faith and credit
if the child had not lived in the forum for at least six months prior to the events in question. 28 U.S.C. §
1738A(b)(4) and (c)(2). A supplemental rule was adopted governing residency questions when the child had
been removed from his home state by a contestant to the proceeding, i.e., parental kidnapping.
§1738A(c)(2)(A)(ii).
The 1990 enactment was designed to settle disputes between states over which decrees granting child
support would be enforced. 28 U.S.C. §1738B. Similar policy questions were answered to bring uniformity to
a hopelessly conflicted area of litigation.

There is nothing in the language or history of Article IV § 1 that would indicate that Congress must wait until
there is a morass of existing cases and numerous bad experiences to bring peace and uniformity to the
interstate practice of family law. In enacting the Defense of Marriage Act, Congress has acted preemptively
to settle problems before they arise. Congress either has the power to establish rules concerning the full
faith and credit recognition of family law acts of the several states or it does not. There is no logical basis for
concluding that, on the one hand, Congress can decree that child kidnapping shall never form the basis for a
valid custody determination, while Congress is powerless to dictate which marriages shall be deemed valid
for the purposes of full faith and credit recognition.

Advocates of same-sex marriage will argue that there is a world of factual difference between such a
marriage and parental self-help in a custody dispute. Such differences may indeed make a difference to
courts in evaluating equal protection challenges to DOMA, but they should have no effect on a determination
of whether Congress had the authority to act under Article IV § 1. Congress has made a policy decision
concerning the recognition of valid decrees concerning the custody of children. It can certainly make other
policy determinations connected to the interstate recognition of other decrees and acts of other aspects of
family law.

The Congressional Research Service opines in its exhaustive The Constitution of the United States of
America: Analysis and Interpretation,

[I]t does not seem extravagant to argue that Congress may under the clause describe a certain type
of divorce and say that it shall be granted recognition throughout the Union and that no other kind
shall. Or to speak in more general terms, Congress has under the clause power to enact standards
whereby uniformity of state legislation may be secured as to almost any matter in connection with
which interstate recognition of private rights would be useful and valuable. [Id. at 870.]

DOMA should be construed consistently with the laws concerning uniformity of custody decrees and child
support awards. Congress can declare which decrees are enforceable in other states and which are not.
Congress could, consistent with this legislative precedent, say that same-sex marriages will not be
recognized in the United States by any jurisdiction other than the one in which it was originally performed.
Congress has taken a much more modest approach. All it has said is that sister states are not compelled to
recognize such marriages.

In my view, DOMA is perfectly consistent with the precedent created in the legislative history and should be
held to be constitutional.
Conclusion

There are times when a prudent lawyer should take his client aside and say, “there are significant forces
arrayed against you that have been extraordinarily successful in similar recent litigation and their arguments
need to be taken very carefully. You may want to find another way to achieve your real objective.” If the
elected legislative representatives of this nation truly what to defend traditional marriage against an assault
from the forces of judicial activism, then it seems apparent that another vehicle other than DOMA must be
found.
i