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The Tipping Point

In 1996 Malcolm Gladwell wrote an article called “The Tipping Point” (later a book), an analysis of how social behaviors reach a certain point and then “take off.” America is coming to a legal “tipping point” that will either restore the rule of law and the Constitution or destroy them both.

Last month I wrote about the first shot fired in the new “Civil War” when Gov. Cuomo banned all non-essential travel to North Carolina because it chose to designate multi-occupancy public bathrooms according to biological sex rather than gender identity. In the last ten days, the volleys in this new war kept coming.

Last week fifty-one families sued the Chicago public school system for its gender-bending bathroom policy, arguing that it violated their children’s constitutional right to bodily privacy that previous courts have found in the Constitution.

Fast-forward to this week. On Monday the state of North Carolina sued the United States and its Department of Justice on the grounds that the department has no authority to assert that the prohibition in the 1964 Civil Rights law against discrimination based on biological sex now means “gender identity,” the sex you think you are in your head. The Department of Justice immediately sued the state back.

The next day North Carolinians for Privacy, an unincorporated non-profit association, sued the U.S. Department of Justice and the U.S. Department of Education for, among other things, asserting as a “rule” its sex-means-gender-identity philosophy is unconstitutional because that “rule” was never lawfully adopted as a real rule in accordance with the administrative procedures act.

And while not widely discussed or appreciated, the lawsuit our organization has filed has added to this legal conflict. It asks our state courts whether the Supreme Court’s Obergefell decision on same-sex “marriage” invalidated our state’s marriage license statute or amended it, statutory amendments being something a court clearly has no constitutional authority to do. The Supreme Court had to do one of the other, because certainly no new statute has been enacted by the General Assembly that would authorize same-sex “marriage” licenses.

What does all this mean? It means the Supreme Court’s legitimacy is about to reach a tipping point.

In 1992 Justice Souter, in sustaining the constitutional validity of Roe v. Wade, said, “If the Court’s legitimacy should be undermined, then so would the country be in its very ability to see itself through its constitutional ideals.” He added, “The Court’s concern with legitimacy is not for the sake of the Court but for the sake of the nation to which it is responsible.”

All these lawsuits are putting the Court on a collision course with its legitimacy. They are putting the Court in a position in which it must begin to overrule, in some instances, literally hundreds of years of constitutional precedent and established norms of constitutional and statutory construction in order to reach the result its majority philosophically agrees with, which is the Obama administration’s position.

In the next year or two, these lawsuit will force the Court either to return to the rule of law and stop killing the Constitution by trying to make it a “living instrument” or kill the rule of law, kill the Constitution, and assert its supremacy over all things governmental in our nation. In other words, the Court is about to reach the legitimacy tipping point.

Personally, I suspect that the Court will reach the results it desires, not those that the Constitution and its precedence would require. That is when we will find out which of two tipping points Americans will have reached.

Will we have gotten to the point we just don’t care so long as we have a job and enough things to entertain us, or will we then realize the truth of what Justice Scalia said last summer—we are no longer our own rulers, but we are ruled by “a majority of the nine lawyers on the Supreme Court?” Only if we reach the latter tipping point will Americans take it upon themselves, as Scalia said, to remind the Court of its “impotence” and demand that Congress do something about it.

The tipping point is coming, America. What side will you tip toward?


David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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How the Presidency is Like the Electoral College

Last week I wrote about the Electoral College and how it serves as sort of a mediating body in the selection of the President. It serves to mediate between the will of the people as a governing body, based on majority rules, and the will of the states as governing bodies, based on the principle of federalism. But I got to thinking that the presidency operates as sort of an electoral college for deciding who the real rulers of America are.

Americans rightly make much of whom the next President will be, because the presidency is a powerful office. President Obama has shown just how powerful it can be if a President is willing to use the extra-constitutional powers found in a pen and a phone. But the President’s power to influence Congress and to issue executive orders isn’t the most important power the office possesses.

What we must appreciate is that the President services as a one-person nominating committee to the body that actually rules America. In that sense, the Office of President is a bit like the Electoral College—it is that mediating “body” that sits as a buffer between the people and the Supreme Court that actually rules us.

That the Supreme Court rules America today is not hyperbole. The late Supreme Court Justice Scalia said it this way in the Obergefell same-sex “marriage” decision last summer:

“Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of nine lawyers on the Supreme Court.”

The power of judicial review—the power to judge a state law or congressional enactment as contrary to the U.S. Constitution—has always been powerful. But Justice Scalia’s statement was recognition of the fact that, in Obergefell, the Court not only exercised the power to declare that a state law was unconstitutional, but took upon itself a new power to declare what the new state law must be.

When the Supreme Court can decree what laws a state must affirmatively enact or, if the state fails to “obey” what the Court says it must do, can “enact” those laws anyway for the state, then the Court is ultimately in charge. The powers of the presidency, Congress, and the states are subordinate and subservient to the Court, and the Court, not the Constitution, is supreme.

While I care about a lot of issues—laws relative to gun rights, abortion, religious liberty, social experimentation in the military, immigration, fighting terrorism, etc.—how our elected officials will deal with these issues is only the penultimate issue; as much as I hate to say it, the ultimate issue is who is on the Supreme Court and to what extent will the Justices “allow” these federal and state elected officials to address these issues.

I loathe that last statement; I don’t want to concede its truthfulness, because it is a statement our Founding Fathers would have never made or envisioned Americans making. But until we have some members of Congress willing to reign in the Supreme Court, and we won’t have those until our citizens and state officials demand that our members of Congress do so, that’s where we are.

Choose wisely over the next few days as you vote in the Presidential Primary, because you are electing the person who has the sole power to nominate members to the de facto ruling body in America.


David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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The Real ‘Story’ Regarding Muslim Presidential Candidates

Ben Carson’s comments about electing a Muslim president and the reaction to them from the press, Democrats, and his Republican presidential opponents has been more than interesting. If you want to get the issue straight, here’s the “story” from someone who really knows.

To begin with, it must be remembered that there are two issues here and they must not be conflated. The first is whether there is any constitutional reason a Muslim could not serve as President. If there is, the second question—whether a Muslim should be elected—is irrelevant.

The Constitutional Issue

As to the first issue, the real “story” can be learned from the forgotten constitutional scholar of the same name, Justice Story of the United States Supreme Court. Justice Story was a brilliant legal mind, being the youngest person ever nominated to the Supreme Court at the time of his nomination. He served on the Court for thirty years and taught constitutional law at Harvard Law School. In 1833 he published the first comprehensive treatise on the Constitution.1 Thus, his thoughts on the three clauses in the Constitution bearing on religion should be persuasive.

The first clause is the First Amendment’s Establishment Clause, which prohibits Congress from establishing a national church. The concept meant that Congress was prohibited from establishing an “ecclesiastical hierarchy” that would receive the patronage of the federal government.

The second is the Free Exercise Clause, also in the First Amendment. According to Justice Story, it was intended not so much to allow us to do in the public square whatever our religion required us to do, but, as will be seen, it was really intended to complement the Establishment Clause.

The third clause is found in Article VI, which prohibits any religious test for public office. This, too, was intended to complement the Establishment Clause.

In his treatise, Justice Story explained how these three provisions were intended to work (bracketed words added for clarification):

The real object of the First Amendment was not to countenance, much less to advance Mohammedanism, or Judaism, or infidelity [atheism], by prostrating Christianity, but to exclude all rivalry among Christian sects and to prevent any national ecclesiastical establishment which should give to an hierarchy the exclusive patronage of the national government.”

“It was impossible, that there should not arise perpetual strife, and perpetual jealousy on the subject of ecclesiastical ascendancy, if the national government were left free to create a religious establishment. The only security was in extirpating the power [Establishment Clause]. But this alone would have been an imperfect security, if it had not been followed up by a declaration of the right of the free exercise of religion [Free Exercise Clause], and a prohibition (as we have seen) of all religious tests [Article VI].” (emphasis added)

In other words, a religious establishment was to be foiled in the first instance by the Establishment Clause, but like a train with a second and third set of emergency breaks, the Free Exercise Clause and the religious test were added. The religious test was particularly important to prevent a back-door establishment by laws that would require those running for office to hold certain religious doctrines.

Consequently Justice Story concluded:

“Thus, … the Catholic and the Protestant, the Calvinist and the Armenian, the Jew and the Infidel, may sit down at the common table of the national councils, without any inquisition into their faith, or mode of worship.”

So a Muslim can clearly run for any office, but that’s not the end of the story.

The Political Issue

Of course, the foregoing did not mean that our Founding Fathers thought we should elect someone in disregard of his or her religious beliefs.

It was clear from the preceding statements that Christianity was the favored religion in the nation’s psyche and, collectively speaking, it was our frame of reference for everything politically and socially. And there are too many quotes from our Founding Fathers about the importance of Christianity to the future success of our country to reference.

In other words, our Founding Fathers did not, by our Constitution, prevent us from doing all the things against our collective best interest that we could do. They assumed we would be smart enough not to elect someone whose allegiance to God would require that they oppose and work to undermine the clear import of our Constitution and the foundational principles underlying our social order.

But based on the current state of affairs in the Oval Office, it seems we’re not as smart as they thought we would be.
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1Justice Story’s three-volume treatise is entitled Commentaries on the Constitution of the United States; with a preliminary review of the constitutional history of the colonies and state, before the adoption of the constitution (1833).


David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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The Amendment That Killed the Tenth Amendment

Last week I mentioned one of the reasons the states lost the rights and prerogatives that were supposed to be retained by them under the Tenth Amendment. This week I’ll point to an amendment to the Constitution that had the unintended effect of further undermining the Tenth Amendment, but more importantly, there may be a lesson we can learn from how that amendment passed that might point a way forward today.

In my commentary How We Lost the Tenth Amendment, I pointed out how the Supreme Court has increasingly encroached on the rights of the states and why Congress has failed to protect the states. But it is not just the Court that has trampled on the rights of states; Congress itself has often gotten in on the action.

The Intended ‘Checks’ on Congress

There was one very important protection given the states under the original Constitution that would have incentivized pushback against the Court and legislative restraint by Congress. It was the “election” of U.S. Senators by the state legislatures. Let me give you a real-life example of how that check might have worked.

How the ‘Check’ Worked in Real Life

As a state Senator, I remember carrying a bill to change a state law in order to comply with a federal mandate on the collection of child support, an inherently state function, like the issue of marriage recently taken over by the Court. The mandate was so egregious and contemptuous of our state law that the mild-mannered and gentlemanly former state Sen. Douglas Henry, a Democrat, slammed down his microphone after speaking against the bill and excused himself from the Senate chamber lest, in his own words, he say something he would regret. The contempt for Congress at that moment was virtually unanimous and bi-partisan!

I tell you that to assure you of this. That particular law would never have passed the U.S. Senate if those then serving in the Senate had had to come to us the next time they were up for “election.” They would have been turned out on their ear.

But here is the key point: It was an issue that the majority of Tennessee’s voters were unaware of and one that would not have damaged their chance of re-election based on popular vote.

The Amendment That Solved What Problem?

Popular vote for the members of the U.S. Senate is exactly what we got with the adoption of the Seventeenth Amendment. It replaced the selection of senators by state legislatures with direct elections

This is not to say that there were no problems with the selection by state legislatures of the members of the Senate. There were mainly two. The first was a feeling that senatorial elections were “bought and sold,” William Clark of Montana famously saying that when he bought a state legislator for the Senate, he expected him to stay bought. The second was that legislatures sometimes reached an impasse on who to select, and a Senate seat would go vacant for a while.

But do we not today feel like elections for the U.S. Senate are still all about who has the most money? Was the problem really solved, or was the pot of money needed to “buy” an election just made bigger and put more out of reach by more people because of the number of votes that now have to be “bought?” The deadlock issue was not that frequent, and the losers were the states themselves; they had a disincentive to deadlock.

A Plan Going Forward

Interestingly, the pressures that brought about the Seventeenth Amendment might be instructive in restoring some vitality to the Tenth Amendment.

The movement for the Seventeenth Amendment began in earnest in the late 1800s, but by 1910, thirty-one state legislatures had passed resolutions in support of a constitutional amendment for direct elections. That same year, the Senate was awakened to the demands of the people by seeing ten Republican senators opposed to the amendment forced out of their seats. And by 1912, twenty-seven states had called for a constitutional convention on the subject, close to the thirty-one then states needed to force the call.

Today, the call for a constitutional convention is growing louder. Tennessee’s Senate resoundingly passed a resolution for a convention last year and the House will take it up this year. Whether the convention is a good idea is a discussion for another day, but it is a means by which the states can raise their voices.

What is missing is a growing movement of states passing resolutions demanding Congress interpose itself between the states and the federal judiciary and the defeat of a few members of Congress who do not head those resolutions. Perhaps during the next legislative session we can start a “resolution movement” by passing a demand that Congress reign in the federal courts by various means. Then we can press this issue in future Congressional elections, starting next year.

I’m up for it. Are you?


David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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How We Lost the Tenth Amendment

As I continue to reflect on the Supreme Court’s marriage ruling, I’ve wondered how we got to the point that the states lost control of an area of the law that, just two years ago, the Court acknowledged to be historically within their province. I have an idea, and the blame for it lies at our feet.

Recently, I was re-reading portions of the Federalist Papers to better understand the role of the federal judiciary as envisioned by our Founding Fathers. I was doing so that I might learn something from the past that would help me better understand what could be done in the present to reign in the Supreme Court in order to restore greater liberty to the people by returning more power to the states.

In Federalist Paper 46, James Madison said that “the powers proposed to be lodged in the federal government” (which includes the judicial branch) would be “as little formidable to those reserved to the individual States, as they are indispensably necessary to accomplish the purposes of the Union.” Madison said this to silence “all those alarms which have been sounded, of a meditated and consequential annihilation of the State governments” by those opposed to the Constitution.

More particularly, Madison said the hope was that structure and limited powers under the Constitution would “partake” of a “spirit” such that the “new federal government” would be “disinclined to invade the rights of the individual States, or the prerogatives of their governments.”

This was true even with respect to the judiciary. In discussing the role of the judiciary in Federalist Paper 82, Alexander Hamilton said, “the States will retain all PRE-EXISTING authorities which may not be exclusively delegated to the federal head,” which “head” obviously included the federal Judiciary.

So, if that was the intention, we have every right to ask what happened. Were not the other two branches of the “federal head”–the Executive and the Congress–infused with that “spirit” which was to protect the “rights” and “prerogatives” of the states?

Of course they were, but they have failed to use them. But why?

I think the answer can be found, at least in part, in Federalist Paper 78, wherein Hamilton said that “liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments.”

In my view, that “fear” has been realized because expansive powers given by the Supreme Court to Congress (consider Obamacare, now known as SCOTUScare) and to the Executive have given rise to the aforesaid “union,” aggregating in “the federal head” great power by which their respective attentiveness to the governments of the states has been diminished.

I’m not necessarily big on conspiracy theories, but I am big on the fact that men are not angels, as Madison said in Federalist Paper 51. In other words, men lust for power and control and have since Adam and Eve decided to take things in their own hands. The Supreme Court gave Congress and the Executive powers beyond those envisioned by our Founding Fathers and, as they say, who wants to “bite the hand that feeds them”?

So, is the loss of our “rights” and “prerogatives” as a state the fault of our presidents and members of Congress over the years? No, the fault is ours. “We the people” have failed to understand our own Constitution and how our compound form of government–a limited federal government and state governments–was supposed to work. As a consequence, we’ve given our votes to presidents and members of Congress who either did not understand it or who wanted to aggregate power to themselves.

We have met the enemy and it is us.


David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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