CPED is Real and Deadly; State Politicians Are Highly Susceptible

Feb 17, 2022 by David Fowler

CPED is Real and Deadly; State Politicians Are Highly Susceptible
After meeting this week with a respected state legislator who I personally like and whose moral values I share, I left disheartened. CPED is killing our nation. I fear those now trying to recruit candidates to run for the legislature will not look for signs of CPED and will be sorely disappointed, even if their candidate wins. CPED is not easily detected, but this should help you spot it going forward.
I will begin by describing CPED’s environs and symptoms. This will make the disease itself more intelligible and easier to spot going forward.

The Environment in Which CPED Develops

I noted symptoms of CPED in the state legislature two years ago when the Senate had two abortion bills before it. 
One of the bills would have prohibited a doctor from performing abortions once human life was detected by a hormone test or the presence of a fetal heartbeat. The other effectively asked the federal judiciary to decide at which of 10 suggested stages of fetal development a federal court would let the state prohibit abortion.
The first bill rested on the existence of unenumerated rights “retained by the people”—the fundamental right to life—under the Ninth Amendment and the jurisdictional authority of the state under the Tenth Amendment to protect those rights.
Expert legal testimony said the Ninth Amendment ground for protecting life in this first bill had not been considered in Roe v. Wade (1973) or Planned Parenthood v. Casey (1992). Therefore, neither of those decisions would be controlling precedent upon which the bill could be held constitutionally unenforceable. 

First Signs of CPED

Even though the legislator I met with this week, and several other members, are staunchly pro-life, the skepticism of state Senators that the Supreme Court would ever do the right thing on abortion, even if presented with a new argument, led them to vote for the let-the-federal-court-decide abortion bill. 
In other words, a group of state Senators, enough to carry the day, decided for the Court what they thought the Court would do with the first bill and didn’t vote for it even though it was most in line with what they believed. The legislators were doing the Court’s work for the Court even though members of the state legislative branch, not the federal judicial branch.
If I had applied that same rationale to the woman that has now been my wife for 40 years, I might never have asked her to go out with me. I would have assumed a woman that special would have said no.

How CPED Spreads

This week, the issue was marriage. The context was the Marital Contract Recording Act (MCRA), Senate Bill 562, House Bill 233. 
Because a competent man and woman have a right to marry as husband and wife that does not come from the government, the MCRA authorizes county clerks to record a document signed by a man and woman stating that they are married.  The MCRA allows the couple to prove they are married, but, unlike current law, they don’t have to get a state permit before they can marry.
As with the first abortion bill mentioned above, the MCRA rests upon the Ninth Amendment—that right at common law of a man and woman to marry as husband and wife marriage is a right retained by the people of Tennessee—as well as three United States Supreme Court decisions.
Again, expert legal testimony has been presented stating that neither the Ninth Amendment nor these other three Supreme Court decisions were considered in 2015 in Obergefell v. Hodges. In that case, the Supreme Court only held that state statutes for issuing marriage permits were unenforceable if two people of the same sex could not get one.  
Like with the issue of abortion and the relevance of Roe, that Supreme Court's Obergefell decision is not controlling precedent for the MCRA.
Sadly, the legislator I met with this week expressed the same concern as expressed on the abortion issue. While this legislator shares my views on marriage and the right of a man and woman to marry, the legislator again expressed a lack of confidence in the Court doing the right thing. 
Of course, no one knows what the Court might do, but this legislator’s support for MCRA, if any, was certainly tepid. It was if he was saying, “What’s the point?”
I don’t yet know what this legislator will decide to do about this legislation, but I am afraid the CPED evident in the abortion context has spread to yet another issue. I sure hope it has not spread to other members yet!

What is CPED?

CPED is the acronym for Conservative Politian Electile Dysfunction. It prevents a conservative legislator with a strong conservative moral value system on fundamental issues related to what it means to be human—life, male and female, and marriage—from standing up for those values when the time arrives to do so politically once he or she is elected. 
CPED causes conservatives, once elected, to lay down flat before nine unelected lawyers on the Supreme Court even though those lawyers (judges) can only issue judgments governing the specific persons in their courtroom, cannot enforce those judgments without the aid of the legislative and executive branches, and cannot make laws applicable to everyone. 

More specifically, a legislator with CPED does not have the constitutional, separation-of-powers and dual-sovereigns knowledge or fortitude needed to put his or her values on those kinds of issues into law and then let the judicial branch do what the judicial branch is going to do.
CPED is an abdication of governing authority and jurisdiction to the United States Supreme Court by conservatives once they are elected, and this electile dysfunction is killing our nation, one abdication to a wrong-headed Supreme Court decision at a time. 
These politicians are allowing the United States Supreme Court to destroy our Constitution.


I hope those recruiting good solid “conservatives” to run for the legislature later this year make sure their recruits are not infected with CPED and that the fear of God and a right understanding of the Constitution have vaccinated them against constitutional wimpy-ness.

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. 

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