God, Law & Liberty Podcast

The 5th and 14th Amendments of the US Constitution grants the right of due process to every citizen. At one time in our history, we knew what words meant. But as those in power seek more power, we have learned to expand the meaning of words in order to expand authority. Substantive due process now exists because the word "process" has been expanded to include "rights." This idea gives courts the ability to now act as policy makers and a secondary legislative branch by using the 14th Amendment to expand rights it deems appropriate to all Americans. Substantive due process is the mechanism by which courts have made abortion, marriage and now education not state, but federal issues. It is inherently an expansion of government.

One thing we are learning from the Coronavirus is that many leaders in government including those sitting on the bench do not understand the Constitution and the limitations of their power. One of the most glaring instances was the case in Dallas, Texas where a business owner was jailed for opening her salon. But more than that, the judge required an apology, an act of contrition, or forced speech. The ruling was so outrageous, that Texas' Governor, Lt. Governor and Attorney General all stepped in on behalf of the business owner. And the Texas Supreme Court ordered the woman to be freed from jail. The question is, how can we execute emergency powers without throwing liberty out the window?

Essentially, the Latin term "stare decisis" refers to precedent. Courts traditionally make rulings not only based on the written law, but also based on past rulings. The idea is to cause the court, in general, to be consistent and predictable in its rulings and exact justice evenly from person to person. The problem is when the court blindly uses precedent in spite of the law, reinterpreting or bending the law to fit its interpretation and thereby becoming a de facto legislative body. Frankly, we could use less precedent and more Constitution in our court proceedings today.

There is no question that we have lost our way as a nation. We are a people deeply divided not only on major cultural issues, but even to the core of the meaning of the Constitution and how we interpret and apply law. In essence, we will either return to the principles of our founding, or we will take an "out with the old and in with the new" approach to our future. Our sincere hope is that we would return to a deeply held desire for liberty, and a strong adherence to the separation of powers so eloquently prescribed by our Constitution.

Can our republican form of government exist outside of a good and moral people? Our founding fathers didn't think so. In fact, John Adams had this to say, "Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other." The Constitution is not some sort of magical document. Its function is primarily to both promote a government by the consent of the governed and provide for a separation of powers within the government itself. As Adams saw it, an immoral people can consent to bad government. The Federalist Papers (1787-1788) echo this sentiment. We must return to the ideals of our founding. We must return to God.

The 9th Amendment says, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." What are the "other rights"? Our Founders' understanding of government and law at the time of the nation's founding was deeply rooted in common law and the idea that our rights are pre-governmental. And, the government's role is to secure those rights. Professor Adam MacLeod of Faulkner University discusses the common law and its role in our government and lives even today.

During this time of crisis and quarantine, our liberties are being tested and boundaries being pushed by civil government. And this has been alarming for churches as worshippers are being asked, and in some cases mandated not to meet for worship. But is this truly a religious liberty issue? Is civil disobedience called for in response? We will discuss some of the history behind our first amendment and how Christians should view their relationship with civil authority.

The words that we use have meaning. In fact, we can know much about a person by the words they use. And especially in the case of courts and legislatures, the words we use define the worldview by which we operate under the law. So, words matter. But what if words lose their meaning, or perhaps some choose to haphazardly and unilaterally redefine them? How does that impact how we understand and interpret our laws? And what of the idea of civility? Do I have to use "your" definition, or re-definition of a word in order to be considered civil, or tolerant?

In the wake of the Coronavirus "pandemic," we take a look at our state and federal government's response and their respective authority to issue mandates to private businesses, churches and the public at large. How should we as Christians respond to government authority when it comes to how and when we worship in our religious institutions? There is a balance between being prudent in our obedience to government authority versus denying God's sovereignty over all things.

In an upcoming article in the Harvard Law Review, Lynn Adelman writes that "the decisions of the Roberts Court are contributing substantially to the fact that ordinary Americans have so little political power." Really? How about when the Court in 1973 and 2015 came up with its own definition of the word "liberty" and used the 14th Amendment to abolish amendments in over 30 state constitutions, amendments democratically passed by a majority of voters in those states? Could that perhaps contribute to "Americans having so little political power?" Let's talk about the Court's political power.

We have discussed for a few weeks now the issue of judicial supremacy and its influence on our legislative process. Well, here in Tennessee, it's alive and well. This week, the TN Senate Judiciary Committee revealed the draft of the Governor's heartbeat bill SB2196. During the hearing, both the person responsible for drafting the bill and the bill's sponsor excitedly announced the country's most restrictive abortion laws that "the courts would allow." We don't legislate anymore here in Tennessee. We just ask the court's permission to protect our citizens. That's where we are. If you are a part of the pro-life movement and care about abortion legislation, this is the episode that you share with everyone!

When working with legislatures, you quickly find that there are good bills and bad bills. But even bills with the very best of intentions can be bad. Why? Because of a lack of findings. Especially when your bill deals with a contentious issue such as abortion, you can almost guarantee that your bill is headed to court if it passes. And to have any hope of passing the scrutiny of the court, the bill must have ample findings such as expert testimony, documented research and so on. Otherwise, you leave the court to draw its own conclusions.

Well, we’ve heard back on our petition to the Tennessee Department of Health regarding our state marriage forms and per the Attorney General’s office, they have decided to….do nothing. Big shocker there. We also learned conclusively that our attorney general is a judicial supremacist, which is to say that he is unwilling to defend the Tennessee state constitution and happy to relinquish law-making authority to the courts.

Today we have a special guest with us on the show, Will Burns. Will is our Director of Public Policy here at the Family Action Council of Tennessee and he is here to discuss some of the bills we are watching in this year's Tennessee legislative session. We'll discuss the Business Protection Act and the School Protection Act, both bills actively lobbied by us here at FACT. But we'll also be taking a look at other bills having to do with transgender conversion therapy, abortion, school athletics, family life curriculum and a couple of other topics.

If court’s don’t make laws, as we learn in basic civics classes, then why do we now say that U.S. Supreme Court opinions are “the law?” Today’s discussion will talk about how the understanding of law and the role of the Judge became to change as evolutionary theory took over the Harvard law school and its critical 1938 decision that turned law on its head. At the end, there is a surprise twist as FACT is using this new approach to law to recover marriage in Tennessee as the relationship of one man to one woman.