The Federtalist: When Kaepernick Took A Knee, He Was Feted. When Joseph Kennedy Took A Knee, He Was Sued

 Colin Kaepernick is known for taking a knee in a pre-game protest. Joseph Kennedy is known for taking a knee in a post-game prayer.

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Who Stands for the Common Citizen?

The doctrine of Judicial Review has been a reality in America for over 200 years. It is the idea that the Supreme Court of the United States (SCOTUS) has the authority to judge whether laws and policies from congress and the president pass constitutional muster.

It all began with Marbury v. Madison (1803). Marbury thought that he had been personally deprived of his rights by then-president Thomas Jefferson and his Secretary of State, James Madison. The Supreme Court heard the case and ruled against him.

Nevertheless, they established a precedent which remains in effect today: if any person believes that an act of congress, or an act of the president, is personally injurious to him, he has standing before the court to sue the government and review the constitutionality of the action.

That’s Judicial Review, and state courts, too, have claimed this power.

Increasingly, Judicial Review has been used to strike down all kinds of long-standing laws, as well as new laws. Even portions of validly adopted constitutions have been declared unconstitutional.

In 2008, California citizens overwhelmingly adopted an amendment to the state constitution to recognize, as valid, only marriage between a man and a woman. This was struck down by a state judge, and sustained at the California Supreme Court.

In 1996 Congress passed the Defense of Marriage Act by about 80-to-20 percent, and President Clinton signed it into law. But in June 2013 SCOTUS struck it down by Judicial Review. More recently, SCOTUS struck down marriage laws in all 50 states when James Obergefell claimed a constitutional right to obtain a marriage license.

Note the pattern here. If a solitary citizen sues the government, he has standing before the court to represent for an entire subset of American citizens.

Perhaps the most notorious of these cases is Doe v. Bolton (1973). This opinion was handed down on the same day as the more famous Roe v. Wade, which struck down first-term abortion bans in all 50 states. But Doe v. Bolton was another matter. Mary Doe was the pseudonym for a woman who supposedly wanted a late term abortion. Doe v. Bolton used Judicial Review to overturn every state law which limited abortions all the way up to the moment of birth.

Sandra Cano testifying before the Senate

However, here’s the twist. Sandra Cano, the woman listed as Mary Doe, never wanted an abortion. Sandra did not even know that an unscrupulous lawyer, Margie Pitts Hames, was using her name before the SCOTUS to argue against her own desires. It took nearly a decade for her to get the records unsealed and expose the fraud.

From that time until she died in 2014, Cano testified that Doe v. Bolton should be vacated because her standing before the court was never verified, and was in fact fraudulent. Sadly, she was told that the statute of limitations ran out before she even found out that her name was on the case, and the fraud of Doe v. Bolton still stands.

Karl Allred

I have outlined a few famous cases of Judicial Review to set some background for a case which is currently before the Wyoming Supreme Court. Last Wednesday, September 20, the Wyoming Supreme Court heard arguments in a case brought by Evanston resident, Karl Allred.

The case was originally filed by Allred, and State Representative Gerald Gay almost a year and a half ago. It questions the constitutionality of Wyoming Statute 9-5-111-113 which was passed and signed in the 2016 legislative session. The suit alleges that the law violates several provisions of the Wyoming Constitution, as well as Wyoming state law.

Gerald Gay

But here we are, almost 18 months later, and court has not even agreed to hear the case. The question has gotten bogged down in the matter of “standing.”

Marbury had standing before the court because he was personally affected by Madison’s actions. Obergefell had standing before the court because he personally could not get a marriage license. Sandra Cano had standing before the court because her lawyer fraudulently claimed that she wanted an abortion. In all these cases, not only did the plaintiffs have standing, but each stood for an entire subset of Americans.

But what happens when you are standing not for a subset, but for everyone? Do you still have standing to sue? That’s the question before the Wyoming Supreme Court.

So far, the courts have denied either Allred or Gay standing to sue. Relying on the so-called “Brimmer Test” adopted by the Washington State Supreme Court, the State of Wyoming has been working to keep the courts from even considering the merits of the case.

Among other things, the Brimmer Test requires parties to have “existing and genuine, as distinguished from theoretical, rights or interests,” in order to have standing to sue the government. The lower courts have deemed that the right of a citizen to have his government follow the Constitution and statutes is only “theoretical” and not “genuine.” That’s a curious position for the state to adopt.

Do you, as a citizen, have only a theoretical right to expect your government to follow the constitution? Or, since your rights are shared with a half-million other Wyoming citizens, do you have no rights to assert when elected officials violate the Constitution? Justice Kate Fox asked Special Assistant Attorney General, Jay Jerde, “If these plaintiffs don’t have standing, then who does?”

That’s a good question. Jerde had no answer. He could only say that if a citizen thinks any government action to be unconstitutional, he has the right to change it through the political process.

This answer troubles me greatly. It forgets the most fundamental reason for having a Constitution in the first place. A Constitution is a document that places limits on popular sentiments. It sets down in law that there are certain rights that citizens, have no matter how many people vote against them.

Even if 99% of the people want to do something unconstitutional, the 1% have the right to be protected from that action. Even if the Executive and Legislative branches together agree to an unconstitutional course of action, our common Constitution makes their action illegal and, therefore, null and void.

I am not here asserting anything about the merits of the case. I am merely pointing out that Constitutional questions are not subject to the political process, but limit what can be done by the political process. To be a constitutional republic means that we reject mob rule and place limits on the power of the popular vote.

For over 200 years, Judicial Review has recognized this reality and placed the responsibility to enforce the Constitution within the power of the courts. Sometimes the courts have served us well in upholding the Constitution. Other times they themselves have become politicized and have created laws and precedents contrary to the Constitution.

However, to throw out the idea of Judicial Review and subject everything to politics would be a gargantuan mistake. All of us have a genuine right and interest in making sure that this doesn’t happen. To deny any one of us common citizens the standing to assert this right in a court of law is to strip every citizen of the real and abiding protections written into our common Constitution.

No matter what you think about the merits of the case, we should all want Mr. Allred to have his day in court. His right to be heard is also your own.

Further Reading:
Casper Star Tribune: Who Stands for the Common Citizen?

We Should All Reject the Religious Test for Office

On September 7, in a confirmation hearing before the US senate, Professor Amy Barrett faced a barrage of questions about her religion. Illinois senator, Dick Durbin, asked her, “Are you an ‘orthodox Catholic’?” Then, bizarrely, he went on to opine, “There are many people who might characterize themselves as ‘orthodox Catholics’ who now question whether Pope Francis is an ‘orthodox catholic.’ I happen to think he’s a pretty good Catholic,” Barrett interjected, “I agree with you.” And Durbin continued, “Good. That’s good common ground for us to start with.”

While these two Catholics were using time in a Senate confirmation hearing to exchange their views on whether the pope is Catholic, the rest of us were wondering what this has to do with confirming a judge to the appellate court.

Clearly, for Durbin it was not just small talk from one Catholic to another. It was somehow, “common ground for us to start with.” That remark vaulted the entire discussion into a different light. By it Durbin indicated not only that her Catholic faith was relevant to the hearing, he also signaled that her opinion about an intra-Catholic dispute is germane to the question of whether she is fit to serve in the US government.

That is alarming.

Durbin was not alone in his opinion. Ranking member Dianne Feinstein also grilled Barrett about her faith. First, she tried a line of questioning designed to corner Barrett into stating that her faith made her incapable of fairly judging some cases. Unsuccessful, she simply used her remaining time to pontificate.

Feinstein said, “I think in your case, professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you, and that’s of concern...” She continued, “over time, we [senators] also learn to judge what they [judicial nominees] think, and whether their thoughts enable them to be free to observe the law.”

Like Durbin, she could not point to an occasion when Barrett failed to uphold the Constitution or words where she refused to do so. But in the absence of evidence, she intended to judge what she thinks, and to divine Barrett’s thoughts by how strongly “the dogma” of the Catholic faith “lived within” her.

These remarks would be troubling enough if they were an isolated instance. But they are not. It seems apparent that they are part of a larger effort. Like the raptors in Jurassic Park, Democrats are making coordinated attacks on the Constitutional prohibition against religious tests, to test how Americans will respond.

We have also seen this in Wyoming. Judge Ruth Neely was removed from her appellate judgeship not for anything that she did on the bench, or any misconduct at all. Rather, she was given a test: “Renounce your religious teaching or you will be dismissed.” She did not renounce it. She was dismissed.

Another example happened in another confirmation hearing three months ago. On June 7, Senator Bernie Sanders was questioning a nominee to the Office of Management and Budget, Russell Vought. Sanders quoted an article that Vought had written in defense of his alma mater, Wheaton College. In it he simply stated the meaning of John 3:18, “Whoever believes in him [Jesus] is not condemned, but whoever does not believe is condemned already, because he has not believed in the name of the only Son of God.”

Sanders went on to do what could only be described as badgering the witness. Unwilling to hear Vought answer in his own words, the senator repeatedly interrupted him with questions like, “Do you believe that that statement is Islamophobic?... Do you believe that people in the Muslim religion stand condemned? …Do you believe that other people who are not Christian stand condemned?”

Note the refrain: “Do you believe?” Sanders was not concerned with actions, but faith. Then, not allowing Vought to answer, he pronounced judgment, “I would simply say, Mr. Chairman: This nominee is not someone who is what this country is supposed to be about. I will vote no.” He didn’t condemn Mr. Vought’s actions, or competence. He condemned Mr. Vought’s person because he believed the Bible.

Imagine another confirmation hearing, perhaps for a position in the Department of Agriculture. Imagine senators asking questions about her competence, her evenhandedness, her history as an administrator, etc. Then suddenly, one of the senators asks, “Is it true that you are a Hindu?”

Puzzled, she replies, “Yes, Mr. Senator, I am.”

He continues, “are you aware of the writing in Sri Caitanya Caritamrita adi lila, chapter 17 verse 166 ‘Cow killers and cow eaters are condemned to rot in hell for as many thousands of years as there are for each hair on the body of every cow they eat from.’”

Taken aback, the nominee hesitates. “Sir, I have not memorized every Hindu sacred writing...”

“Aha!” says he, “so, are you accustomed to adopt a religion without knowing what it actually teaches? In that case I question your good judgment, and therefore your ability to serve.”

“But, Mr. Senator, I am aware of my faith’s high regard for cattle. I was merely noting that I could not vouch for every word of the text.”

“Oh, I see. That’s understandable,” answers the senator. “In that case, I would simply ask a follow up question: Now that you are aware of the scripture condemning anyone who either eats or kills a cow, do you believe it? Remember, you are under oath.”

The madness and danger of this line of questioning should be as plain as day. To judge the fitness of anyone to serve a governmental post based on their religious ideas is simply out of bounds. Of course, it would be relevant to her confirmation if she regularly treated ranchers and meat-eaters unfairly and with personal animosity. In that case, it could hinder her ability to effectively perform the job.

But if that charge were true, it could easily be proven by testimony from any of her fellow workers. You wouldn’t need to bring up their religious beliefs at all. Not only is it unnecessary, it is also forbidden. Article VI of the US Constitution states, “…no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

To serve in a governmental position, the only requirement is that one “be bound by Oath or Affirmation, to support this (US) constitution.” (Art. VI). This clause has enabled people of mutually exclusive religions to serve together in a peaceful government for 230 years.

Atheists and Catholics can seek common ground as well as Buddhists and Evangelicals. Nobody is excluded from government office. But now there is an attempt to exclude some people from the table based purely on what they believe.

If successful, not only will conservative evangelicals or ‘orthodox Catholics’ be dismissed from government service, but the door will be open to excluding any person in the future not based on their actual behavior or integrity, but based solely on their perceived thoughts.

The Execution of Queen Mary

16th century England learned all too well the horrors of such religious intolerance. Bloody Mary earned her name, and her protestant sister Elizabeth persecuted Catholics with equal fury. Unless we want to see those days return, all of us should stand up with united voice and rebuke anyone who uses a religious test.







Further Reading:
Daily Signal (2/21/18) Trump Nominee Attacked for Faith Finally Heads for Confirmation Vote

Public Lands in Public Hands

As of September 7, there were 76 large fires raging in the American west with a total of 1,484,353 acres burned. Over a million of these are in Montana alone. That’s 1,614 square miles, more than half of Laramie County (2,688 sq. miles).

But numbers can’t tell the human story. It’s not just trees burning, but homesteads and history. Among the 530 structures destroyed there was beloved Sperry Chalet, a Glacier National Park tradition since 1913. Countless livestock and people have been displaced. Air quality is making breathing difficult for all of us, and downright dangerous for some.

It’s a good time to think about the people who are closest to the fire-lines.

Photo by Preston Kiehl

First, let us take the time to thank God for the tens of thousands of firefighters who have been working long hours in dangerous conditions since mid-July. Pray for their safety, and for the family of Brent Witham who gave his life fighting the Lolo Peak fire in Montana.

Think also about the people who live and work on these burning lands. They are the tenants of the American people. They pay us rent, and we promise them use of the land in return. “Dual use” means that public lands are not just nature preserves, they are also working ranches. We have invited real people to live on the land and populate it with livestock. We are responsible to manage it well.

For these people, wildfires are an unmitigated disaster. They displace untold numbers of sheep and cattle fleeing the approaching fires. Where undergrowth is thick and roads are scarce, their keepers have no way of moving them to safety. They must fend for themselves, sometimes trapped by fences and locked gates.

Not only do wildfires rob ranchers of feeding ground they had counted on, they also pollute entire drainages and burn fences costing up to $10,000 per mile. And it’s not just the fires themselves. Policies that prevent ranchers from clearing deadfall and thinning undergrowth increase the fire hazard while decreasing the grazing value of land become inaccessible to both livestock and big game.

While ranchers see wildfires as disastrous for their livelihoods and the forests they live on, wildlife biologists managing the federally owned land tell me that wildfires are a natural part of the ecosystem and “a very good thing, so long as they are not destroying people’s homes.”

They welcome fire for its ability to improve the range in the long run. It clears away the deadfall and undergrowth that reduces grazing value, and makes room for meadows of lush grass. Naturalists also calculate that the water pollution is only temporary. They cringe when entire ranges are lost to fire because herds can be devastated by winterkill. But justify the loss as a necessary evil.

Here are two wildly different views of wildfires. Ranchers want to manage the land to prevent them, while naturalists want to manage the land by letting them burn. But they do agree on one thing: both see the accumulation of deadfall and underbrush as mismanagement of the land.

Where they disagree is whether proper management is by human ingenuity, or by random lightning strikes. “Log it, graze it, or watch it burn,” is not just a slogan. It precisely articulates the actual preferences of opposing viewpoints. Some would rather log our public land and graze it, others really would rather watch it burn.

At the end of the day, it is a question of religion. For those who believe that we were placed on earth “to tend and to keep it” (Genesis 2:15), human efforts to manage the undergrowth and use it productively are natural. For those who believe that man is an evolutionary accident arising from random chance, chance lightning strikes and a hands-off policy are the natural approach.

If you believe mankind is a cancer on the land, why would you have him manage it? If you think we are the crown of God’s creation, why would you not?

Lately we have been hearing a lot about “Public lands in public hands.” It’s a compelling slogan because it is another thing that we can all agree on. Nobody wants to see our public lands in the hands of a few private individuals, or corporate interests. However, this basic agreement does little to help us unless we ask the underlying question: what, exactly, are “public hands”? Are we the public, or is only the federal government public?

“Public hands” that care about the ranchers who are closest to the land are ultimately human hands. They can harness centuries of know-how to cultivate the land according to the best principles of dual use. But “public hands” that are distant decision-makers in Washington, D.C., have a history of being hands-off. This is management by random chance, not by people put on the land to tend and to keep it.

How we decide this question directly reflects our attitude toward creation and its Creator. At the same time, it will reflect our love for the people whom we have asked to live and work on the land that we own. Ultimately, to love one is to love the other.

Rescuing Families

After devastating Houston, Hurricane Harvey moved back out to sea to reenergize. Then it came back ashore and dumped two more feet of rain. Watersheds were already over-flowing. But now they were asked to take enough water out to sea to charge Niagara Falls for 15 days.

There was a major problem. Between the draining rainwater and the sea lay Beaumont and Port Arthur, Texas. Neither community was expecting what would happen next.

Perfect conditions set the stage for a flood which developed so quickly there was no opportunity to evacuate. Soon thousands of residents found themselves cut off by the rising water. Thousands of people were unable to drive to safety. Only the “Cajun Navy” could navigate the streets in flat-bottom boats to ferry the stranded to safety

But some were inaccessible, even to boats. Two Helicopter Sea Combat Squadrons (HSC), 7 and 28, jumped into action. Between them, six marine-outfitted Nighthawk helicopters (MH-60s) began to pluck people from homes that were quickly being inundated.

A day after performing 227 rescues in the Houston area, they were faced with thousands of people cut off by a surge of rainwater making its way to the sea.

This is the news that greeted us when we turned on the TV last Wednesday afternoon. Most captivating was the live footage from Trace Gallagher of Fox News Network. He and his cameraman were riding aboard one of the MH-60 helicopters, filming the dramatic rescue of a Beaumont family.

After a diver located the stranded family, they hoisted the mother and a small daughter aboard the war machine. Through tears, the little girl began to ask about the family dog. But viewers knew that the soldiers were focused on rescuing people, not animals.

The basket was lowered again and repeated, emphatic hand-signals from crew members to their swimmer below communicated a clear order. Not only did they load her older brother, but the dog as well. Tears turned to smiles that they dried the dog and checked for injuries.

But the work was not done yet. Asking if there was anybody else still on the ground, the son shouted, “My dad!” Soon the basket was being lowered again to retrieve the patriarch of the family who had remained on the ground seeing to the rescue of his wife, children and pet before allowing himself to be hoisted from their destroyed home.

These ten minutes of footage, and the background commentary by Trace Gallagher, have occupied my mind since. There is much more here than an exciting rescue story. Here is a picture of what is right with the world, and a road map to rescue us out of the flood enveloping us.

Notice the order of the rescue. First on the chopper was the mother and female child, second came the male child and dog, lastly, the father of the family. Obviously, someone had a hand in deciding this order. We don’t know who, but whether it was the Navy diver, the father, or some unknown agent, it is deeply significant.

Chivalry is not dead. Women and children are still pushed to the head of the line by the men who love them. This may not happen as consistently and often as it once did. But it still happens. Subtly and quietly throughout our land it is happening every day. This ought to give us some cause to cheer up.

A second detail was also unmistakable in the middle of the chaos.  After the soldiers pulled the father aboard to complete the rescue, the mother made the sign of the cross upon herself and prayed. With a single gesture, the entire scene was bathed in divine lighting.

Right there, live on national TV, the invocation of Christ offered an unmistakably Christian interpretation of what we were seeing. At least that’s the way the family was interpreting it. No matter how harassed, hated, or marginalized, Christianity is still vibrant and relevant in everyday lives.

Understood in this light, we would have reason to believe that the order of rescue noted above was neither choreographed nor random. In light of the cross, a husband and father placing his wife and children before himself is not following some mechanistic requirement. This is simply the natural flow of love. As Jesus said before He Himself died for his disciples, “He who would be greatest among you, let him be as the least, and he that would be the ruler, let him be the servant.”

Notice, third, the orders given to the chopper crew. Trace Gallagher reported that they had been commanded to keep families together. They were even commanded to accept the rescue of family pets when requested. This is a departure from the standing orders of previous rescue operations.

Rescue operations for previous hurricanes did not give attention to this detail. The focus was exclusively upon the rescue of individuals, apart from any consideration of family. As a result, some families were inadvertently broken apart by their rescuers and spent hours, days, and weeks unable to find one another in the chaotic aftermath. Though not intentional, ignoring family togetherness added to their misery.

But not this time. Someone in the chain of command had taken note that family integrity is important. They learned that while the rescue of individuals is essential, it is not the only thing. Human beings have two primary needs, they need protection of their individuality and, at the same time, protection of family integrity.

Families are the basic building block of any society. Any real help for the individual must also help the family. For too long we have been presented with a choice between valuing individuals or valuing the social order. The first leads to radical individualism, the second to collectivism. Both are wrong.

It is a false choice to emphasize one of these aspects of humanity at the expense of the other. But this false dichotomy is driving much of our political conversation these days. The answer lies not in an either/or, but in a both/and.

Every individual is of inestimable value; no single person can be sacrificed for the whole. But, at the same time, people are not essentially individuals. Relationship is also essential to who we are. To divide humanity into a million individuals is to destroy an essential part of humanity. To honor and uphold the natural bonds of husband and wife, mother and child, father and child, brother and sister, is to make every individual stronger and more complete.

One of the great benefits of western culture is that we are the inheritors of more than 1700 years of profound understanding and unpacking of this theme. For centuries, Christian philosophers, theologians, and scientists have noticed our double need for both individuality and family unity. More than that, they have seen that it is nothing less than an embodied way of expressing the nature of God Himself, who is at the same time both One, and Three.

Our cultural heritage has many such insights capable of rescuing us from the swirling waters of individualism and collectivism. The next time you see communists and radical individualists clashing in the streets, close your eyes and remember the rescue of families in Beaumont.

Not only does this sight gladden our hearts and combat the constant negativity, it also offers a vision for reclaiming a fundamental truth about human thriving. Guided by the light of this truth, we can see a clear path towards reconciling these two opposing worldviews, and rescuing, not only one, but all families.