Growing Threats to Civil Liberty Have a Silver Lining

Jul 17, 2020 by David Fowler

Supreme Court Decisions
I think I’ve found a silver lining for those who are frustrated with the governor’s Executive Orders on COVID and the two most recent court defeats on abortion—the U.S. Supreme Court’s decision on Louisiana’s abortion law and the temporary restraining order entered Monday by U.S District Court Judge William Campbell halting enforcement of Tennessee’s new abortion law. I also have a helpful resource for those who want to use this “silver lining” to their benefit. 
The silver lining is that more people than ever are asking questions about what is going on, questions related to civil liberty. What is good about that is these questions cannot be answered without first helping them understand how our form of constitutional government is intended to work. An understanding of the foundations of civil liberty is the first step in restoring those foundations and the civil liberty they were designed to protect.

Silver Lining No. 1: Learning Why the Separation of Powers is Important

Last week, a long-time friend of mine, a beneficiary of a solid high school and college education, asked for my help in responding to questions from friends who were critical of his publicly voiced complaint that the governor has purported to authorize county mayors to make wearing masks in public a state criminal offense. Since then I’ve gotten an increased number of calls and emails about the subject, no doubt a result of my commentary last week.
To me, this is great. People who have never had to think about what it means when we say the Tennessee Constitution is the supreme state law in Tennessee are now thinking about it. 
I’m thrilled that more people are beginning to understand what their 8th grade civics lesson on the separation of powers looks like when played out in real life and how it actually serves to protect civil liberty ‑‑ which is not the liberty to do as we please, as liberals think, but is the liberty to live under the civil laws we make to govern ourselves by means of representative government.
People are starting to see what can happen to civil liberty when orders that appear to them like laws start coming from the executive branch and when those who are supposed to represent the people in the making of the laws that govern them (civil liberty) are largely unresponsive. 

Silver Lining No. 2: Learning How the Courts Undermine Civil Liberty 

However, COVID orders from the governor and inaction of incumbent legislators are nothing compared to how federal courts undermine our civil liberty. 
Unfortunately, the desire to understand that often only arises for people when cases that are of great importance to them are lost in the U.S. Supreme Court and that, for me, is the silver lining from Justice Roberts’ recent vote in favor of a judgment holding unconstitutional Louisiana’s abortion law.  
As a result of Robert’s opinion, I was asked to speak on Tuesday to the directors of twenty pregnancy resource centers from across the state about why pro-lifers had lost again. My remarks were very timely, as on Monday Judge Campbell put on hold Tennessee’s brand-new abortion law.
The bottom line on how the Supreme Court assaults our civil liberty is this: 

Every time the Supreme Court makes up some new “liberty right” in the 14th Amendment that is disconnected from the historic understanding of liberty—the ability to move about free from restraint by civil government absent due process of law—it takes away our civil liberty, i.e., our right to govern ourselves through representatives.


Applying Silver Lining No. 2: SCOTUS and Abortion, Point 1.

For example, states, before and after the ratification of the U.S. Constitution, had the power to govern medical practices within their borders. Regulating the medical practices of Tennesseans in relation to Tennesseans is a domestic issue, not a national one (so far, but Congress loves to violate the principle of federalism . . . another issue for another day!) But, the U.S Supreme Court said Louisiana did not have that power if the medical practice concerned abortion procedures.  
Most pro-life folks don’t really stop to ask why only that particular medical procedure is outside of the power possessed by states to regulate medical practices within their borders. In other words, does the state have the power to regulate the practice of medicine within its borders or not? For example, would a person have a “liberty right” to marijuana under the 14th Amendment if it is needed for medicinal purposes? Was the 14th Amendment intended to strip the state of the power to say, “No” on that issue too?
Today isn’t the day to explain how the U.S. Supreme Court’s abandonment of fundamental law led to Roe v. Wade or why medical marijuana isn’t a constitutional right, but I will say this: 
The 14th Amendment’s due process clause was never intended to be used as tool for a majority of nine lawyers on the U.S. Supreme Court to take away from the people the right to and power of representative self-government within their state when it came to medical practices affecting their health and well-being. 

Applying Silver Lining No. 2: SCOTUS and Abortion, Point 2.

In addition, most pro-life folks also don’t understand the nature of judicial power and how the lie of judicial supremacy, made from whole cloth by a U.S. Supreme Court decision in 1958, is used to undermine their civil liberty. However, I think my audience on Tuesday understands it now. 
I know they left with this realization: 
Unless Tennessee confronts Roe directly and defends the governor’s abortion legislation on the grounds of fundamental law—law that exists apart from and prior to any civil law and upon which civil law is to be based— then pro-life advocates should not expect Judge Campbell to distinguish Roe and uphold the law. They should also expect to lose in the Supreme Court if the lawsuit gets that far. 
Knowing these pro-life leaders are aware of this and can influence the pro-life people who support them is, to me, a silver lining from the loses in court this month. I think they now realize that some politicians don’t understand how to actually be pro-life within our form of government.

The Resources I Promised

If you now believe it’s important to determine whether those seeking to be your state representative or senator understand how our form of government is supposed to work, then you’ll want to click on this link before you vote. 
At that link you will find our 2020 Candidate Questionnaire — a series of short videos in which I explain a key governing issue, like judicial supremacy and answers of candidates to a direct question about that issue. I believe you will find the videos beneficial to your own understanding of these issues. 
At this link, you’ll find a video related to the U.S. Senate race. It, too, deals with fundamental issues related to our governing structure, but is directly related to Congress. 
I hope you’ll take advantage of these two resources. How candidates answered will give you an insight into how they understand and apply fundamental principles. 
Just as importantly, it will help you find out who didn’t care enough to answer. In my book, that’s the worst answer of all—they don’t care.
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. 

Subscribe to Email Updates


Donate to FACT

Make a Donation