Memo to Mark Levin: Article V Convention of States Has One Big Caveat

By Alan W. Cohen

Watch out Mark Levin. It has all happened before. The author and conservative radio host has begun a movement under Article V of the Constitution to create a convention of states to amend the constitution to strip the federal government of much of its ill-gotten gains, gains that have diluted freedom from the individual and authority from the states. On his radio show of October 10, 2017, a caller warned him that the federal courts are lurking in the shadows, waiting to override any sweeping changes the convention might pass. In response, Levin was confident that the states would prevail.

Yet, that is exactly what happened with the Fourteenth Amendment, and we still have not recovered almost 150 years later. As I explain in much greater detail in my latest book, Private Vows: The Case for Ending State Regulation of Marriage and Divorce, the Civil War ended with a great Republican majority passing a series of Amendments, each with their own purpose. The Thirteenth Amendment ended slavery. The Fifteenth Amendment guaranteed the right to vote. But the Fourteenth Amendment had another, more profound, purpose.

As Mr. Levin explains in great detail in his most recent book, Rediscovering Americanism (please see the link to my review at the end of this blog), the Founders of our nation believed, and declared it in 1776, that we are endowed by our Creator with certain inalienable rights. And, with all due respect to those morons on MSNBC and CNN, those rights predated, and are the basis for, the Constitution. That is because we are all individuals, individuals that banded together to protect the rights of other individuals. Yet, somewhere along the line, our nation changed from being a republic to being a democracy. Georgetown law professor Randy Barnett explains that when the Founders created the Constitution, it was based on the Declaration of Independence, and that the preamble said it all. We the People means we the people as a collection of individuals, not of the majority. Unfortunately, a movement began, less than 25 years later, to justify slavery, a movement that became the Jacksonian Democracy. Levin calls it mobocracy. Barnett calls it the Democratic Constitution. A key illustration is this phenomenon is the Kansas-Nebraska Act of 1854, an act that empowered the citizens of those states to vote on whether to enslave a minority of their peers.

The Supreme Court signed onto the Jacksonian Democracy in 1833, the year after Jackson’s landslide victory over Henry Clay for his second term. Here I will invoke the name of a person that Mr. Levin detests as a bigot, a racist and an anti-Semite: Supreme Court Justice Hugo Black. Despite his serious flaws, Justice Black proposed in a dissenting opinion in 1948 that we lost our republic in 1833 with the case of Baron ex rel. Tierman v. Mayor of Baltimore, where the Supreme Court declared that the Bill of Rights did not apply to the states, but only to actions of the federal government. Black suggests that Chief Justice John Marshall was just a bit dishonest in his four-page opinion, a sparse writing of what was one the most important decisions of the century. In fact, as I explain in Private Vows, Marshall was scared, and had good reason to be. President Jackson was a scoundrel, and had recently refused to abide by a Supreme Court opinion protecting the Cherokee leading to the infamous Trail of Tears. Until Jackson came onto the scene, Marshall had carefully fostered the Supreme Court’s authority to override legislation and executive actions through the power of judicial review. Marshall anxiously wanted to preserve his gains, and knew to tread carefully to avoid Jackson’s wrath.

The real question in Baron was whether the federal courts had the authority to enforce the inalienable rights recognized in the Declaration, the rights of the individual against the authority of the state or local government that was violating those rights. That same question is with us today. In a dissenting opinion in 2000, Justice Antonin Scalia agreed with fellow Justice Clarence Thomas that the Constitution preserves those inalienable rights within the Ninth Amendment, but refused to enforce them because the Constitution did not specifically provide for a remedy. The question for Justice Scalia then, as with Chief Justice Marshall in 1833, is this: What good are rights if there is no place to enforce them? According to Justice Black, Marshall adeptly sidestepped the issue, and for good reason. As I explain in Private Vows, if the federal courts had the authority to enforce inalienable rights against state or local governments in 1833, slaves would have been coming in droves to seek redress and there would have been a civil war. Since Marshall sidestepped the issue, the Court could not enforce Dred Scott’s claims for freedom only a few years later, an event that ironically led to the death of hundreds of thousands of Americans that Marshall had so greatly sought to avoid. After the Civil War, according to Justice Black, it fell on Congress to right the wrong of Baron and restore the Republic, and individual liberty, with the passage of the Fourteenth Amendment, making it clear that individuals did indeed have a right to redress of state and local violations of their individual rights in the federal courts (as well as in the state courts).

There was one big problem. The Supreme Court was filled with Jacksonians who refused to comply with Congress’ mandate even if it was the will of the required number of states. In the infamous Slaughter-House Cases in 1873, the Court all but nullified the Fourteenth Amendment by calling it just an anti-slavery amendment:

The constitutional provision there alluded to did not create those rights, which it called privileges and immunities of citizens of the States. It threw around them in that clause no security for the citizen of the State in which they were claimed or exercised. Nor did it profess to control the power of the State governments over the rights of its own citizens

Thus began more than a century of state control over the individual so vast that individual freedom was all but lost, freedom that the Founders intended, freedom that we still don’t have today. Soon after The Slaughter-House Cases, the Supreme Court affirmed state policies based on eugenics, justifying discriminatory laws and, as a means of enforcing them, created out of thin air, as I explain in Private Vows, a justification for state regulation of marriage and divorce. As Levin explains in Rediscovering Americanism, this statist thinking became the fodder for the socialists, the so called Progressives as a means for controlling the masses. It inspired the ever Progressive Woodrow Wilson to re-segregate the entire federal government during his first term of office. It empowered the KKK to rule with a violence, ending black lives on the spot just for the crime of not being white.

Thus, the lesson for Mark Levin and his followers is that that an Amendment to the Constitution is not enough. We have to fill the Supreme Court with those willing to enforce it. While, as with the Trump travel ban, we cry over the illegal nature of the Ninth Circuit and other federal courts, those actions pale in comparison to the 19th Century and a Supreme Court that was hell bent to undo the Union victory, to preserve and restore the Jacksonian Democracy. and to preserve racial and religious discrimination.

Alan W. Cohen practiced law for more than 25 years before retiring. He is a graduate of the University of Missouri-Columbia School of Journalism and the Washington University School of Law.  Besides Private Vows, he is also the author of America Solved: A New Family for the 21st Century, as well as several other books on family law.

Recent Blogs:

Three Important Lessons I Learned From Mark Levin’s Rediscovering Americanism

How the Conservative/Libertarian Media Revolution Can Save America from McConnell and his Washington Cartel

Time to End Slavery-like NFL Draft According to Odell Beckham, Jr.

Celebrate America’s Birthday With A True Civics Lesson From Mark Levin

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Three Important Lessons I Learned From Mark Levin’s Rediscovering Americanism

By Alan W. Cohen

You are never too old to learn some  new tricks about understanding the Constitution, and Mark Levin just gave me a few pointers on how I can do just that with his new book, Rediscovering Americanism. I am not a longtime fan of Mr. Levin, but I am now. In fact, it was just about four months ago that I turned on my radio and listened to him make an argument that I made in my latest book,  Private Vows: The Case for Ending State Regulation of Marriage and Divorce. As you might expect from the title, my conclusion is that government interference in the family is not only unconstitutional, but it has been, especially for the past 50 years, completely destructive to the institution of marriage. Until I read his book, I could not understand why.  Now I know, thanks to Mark Levin.

As Mr. Levin has maintained, the Founders of our great nation believed in Natural Rights, and they considered those rights unalienable (or inalienable), meaning that they cannot be transferred or surrendered.  In the words of the Declaration of Independence, those rights are God-given. We are born with them and they remain with us until our demise. The Founders so believed in what John Locke and Aristotle called right-reason and Natural Law that they did not even consider the possibility that any government in America would interfere in the individual families of its inhabitants. After all, as Locke tells us, religious liberty was and is at the heart of the freedom the Founder fought, and died, to achieve, and the family was and is the heart of religious liberty. After the Revolution, the newborn Republic tossed out the Anglican Church, and with it state control of marriage and the family.  And, at least for the first 50 years of our nation, that was the rule, as the Supreme Court so admitted in 2015, that marriage in America began as a purely private affair. The Founders, with the Contracts Clause, made it part of the Constitution. Marriage is a private contract, and government interference would be prohibited. Yet, a little more than 100 years after the Declaration, couples could not get married or divorced without the permission of the state. And, if they were interracial, they might as well forget it. If they wanted to practice some other religion other than Protestantism, like Mormonism, and marry within its tenants, forget it. Catholic vows were irrelevant. The government was in charge.  Yet, for the vast majority of people, government interference in the family was minimal, if not infinitesimal. That all changed in the 1960s, when socialism began to overtake the religious right and wrestled control of government.

Now here are the three important lessons I learned from Mark Levin and his new book, Rediscovering Americanism:

  1. We are already a socialist nation. Political parties are useless descriptions.  In fact, with the exception of three in the Senate, and a few more in the House, there is little difference between Republicans and Democrats. That’s because, as Levin tells us, the Mainstream Media has taken charge of the Socialist (Progressive) Agenda. Politicians only care about their reelection, and they are too frightened of bad press to cross it. That fact became all the more clear with the election of Donald Trump. The media is hell bent on his destruction, even more so than that of his Republican predecessors.  As I stated in a prior blog, journalism is not dead. It was never alive. Fair and balanced is nothing more than a tagline to convince the viewer (or reader) of its truthfulness. Even Thomas Jefferson complained about the dark side of the free press, that newspapers were the voice of the wealthy, not of the People. Film buffs will recall Citizen Kane, where the protagonist declares that his newspaper would not report the news, but rather make the news. We see that now with RussiaGate. Many of the Main Stream Media (CNN, Washington Post, New York Times) have thrown off their false bravado to achieve their ultimate goal: what Levin calls a Silent Coup Timid Republicans in Washington acquiesce, cowering in a quiet corner. They know who the boss is and it’s not the People. I join in most of mid-America that have taken Levin’s advice, and have turned off the noise that is the media because we know that they are not looking out for our interests, only their own.
  2.  Socialism is evil  Therefore, we cannot compromise, for every compromise with the Progressives gives up territory that cannot be easily regained.  Just like their compatriots, the Bolsheviks, Progressives chose their name to convince the masses that they speak for the majority, knowing that the opposite is true. And just like the Bolsheviks, Progressives have largely succeeded in taking power. But, as Levin tells us, this is not a new plan, or even, as I had believed, a plan that came to pass in the 1960s. Rather, the counterrevolution in America has been mounting for more than 125 years. In fact, it has been there from the beginning, waiting in the darkness, seeking the right time to strike. When Benjamin Franklin emerged and told his public that we have a Republic if we can keep it, he knew of this darkness. All the Founders did. It was the same tyranny they had fought to overcome. It was not limited to a monarchy. Mob rule was just, if not more, dangerous. As Levin explains, the Founders rejected Rousseau in favor of Locke, unlike the French, whose revolt ended in mass murder and the emergence of a savior who promised order from the madness, Napoleon Bonaparte,  who would, in turn, lead his people to utter destruction. We saw the same with the likes of Hitler and Mussolini, and a slew of dictators of would be socialist countries, most recently Venezuela. For socialists, America’s exceptionalism has proved a more difficult quarry. The ride from freedom to tyranny has been gradual. Socialists understand that, given our stubborn individualism,  it is necessary, to steal our freedom little by little, generation by generation, relying on a left skewed educational system as Levin tells us is their Mein Kampf. For example, historians celebrate Theodore Roosevelt and Woodrow Wilson. Yet, as Levin teaches us, those leaders disavowed the Founders as historical creatures, that their time has passed, as had their beliefs in Natural Law and unalienable rights. The Bible teaches us about recognizing evil, and our character is built on how we overcome it. Mark Levin is our filter. He points out for his millions of listeners the sheer folly of compromising with socialists (or Statists) because any breach in the wall of freedom is a pathway to tyranny. Unfortunately, we are well on our way to that end. More than ever we must teach the virtues of capitalism and purge socialism from our midst.
  3. Property rights are just as important as liberty because it is our ability to acquire property and to control it that ensures our liberty. In a recent broadcast, Levin cited a laundry list of Socialist (a/k/a Democrat) politicians that have become super rich as a result of what our Founders described as public service. Bill Clinton was dirt poor as a governor. Now he is worth hundreds of millions, as is Al Gore, Bernie Sanders, and most recently Barrack Obama. Even liberal icon Maxine Waters, who claims to act for the poor, lives in a four million dollar estate in a 95 percent white and affluent neighborhood outside of her poverty-stricken district. She entered into politics, as many of her counterparts, not to serve, but to earn. These so called leaders demonstrate the folly of socialism. Marx and Engels said in their manifesto, each according to their needs, but who would decide those needs? A ruling elite of experts that, by the nature of the system, would be exempt from the scrutiny of the rest of the masses (see e.g., Bernie Sanders wife, Hillary Clinton, etc.). Levin tells us that our Founders  devised a system that divided economic power from political power because they knew that property rights kept tyranny outside that wall. That is why our Founders rejected government interference in the family, because historically, wealth is built on the stability of its shoulders. That is how Great Britain got to be great, by focusing on property rights and the right to inherit. Wealth is the ultimate incentive of capitalism, to not only provide for yourself in the here and now, but to provide for your offspring and their families as well. Socialism disdains wealth, and the destruction of family has been its long term goal, a goal that is within their grasp. As I explain in  Private Vows: The Case for Ending State Regulation of Marriage and Divorce,  as well as my 2015 book, America Solved: A New Family for the 21st Century, federal policy has been, for the past half century, to punish virtuous behavior and to reward bad behavior. Levin explains why. It’s all about control of the all powerful State that we must worship as a deity. Even billionaires, who built their fortunes on capitalism, now disavow it, because they fear the wrath of the so called Progressives, just as Republicans are terrified of the Main Stream Media. Destruction is just a step away, and the Progressives are watching, waiting, and ready to pounce on any indiscretion.

There is much more to learn from Mark Levin and Rediscovering Americanism. But these three lessons stand out for me personally. Every right minded, or as Aristotle said, right-reason minded, American needs to not only read this book, but to study it, and to preach its gospel to anyone who will listen. It is our duty as Americans to save our nation from the tyranny that is already inside our gates.

Alan W. Cohen retired after practicing family law for more than 25 years in St. Louis, Missouri.

Previous Blogs:

Another Teacher Rape of a Young Boy, Another Future Child Support Claim

RIP: Herma Hill Kay, Creator of No-Fault Divorce, Destroyer of Traditional Marriage

Simple Health Care Solution Pits Capitalism Against Socialism

Islamist Victory in Antisemitic Public Relations Battle Spells Doom for Freedom, Completes Conquest of Europe

Memo to Elite Media from Mid-America: We Don’t Care! So, Shut Up Already!

Three Important Lessons I Learned from Georgetown Professor Randy Barnett

Can Millennials Save Marriage in America? Studies Say Yes.

 

 

Another Teacher Rape of a Young Boy, Another Future Child Support Claim

By Alan W. Cohen

It seems like it happens every year. Some loco female teacher go gaga over a young boy, and is found out only when a child results. It happened again this week, when it was reported:

“Marissa A. Mowry, 25, was arrested by the Hillsborough County Sheriffs Office and taken to the county’s jail, Fox 13 reported.

Mowry reportedly started a sexual relationship with an 11-year-old boy in 2014 when she was 22, police said, adding that the relationship went on until the boy was 14.

In October 2014, Mowry gave birth to a child who is now 3, deputies said.

Mowry is facing sexual battery and sexual assault charges. The Hillsborough County Sheriffs Office Child Protective Division is also investigating the incident, WFLA added.”

Here’s the bad news for that boy. In just four years, he will be a legal adult, and that same rapist will likely go after him for child support and win. Yes, being the victim of a rape is no defense to child support. That was something that was decided in the family courts more than 25 years ago when a Wisconsin Court of Appeals found that a being raped as a minor was no defense to paternity, that the resulting child was the innocent one, and all children deserve to be supported. Period. All 50 states have adopted this principle, as has our federal government. All that matters is that the sperm hits the egg.

A more immoral statement has never been spoken. And that is what our nation has turned into, a land where right is wrong and wrong is right, where the Natural Law that Aristotle spoke of, is turned completely on its head. The Roman senator Cicero distinguished between the laws of nature and the law of man. The law of nature was moral and incorruptible, while the law of man changes with the wind, the will of the mob against the rights of the individual.

What we have in America, and have had for more than 150 years, is man made law trumping natural law. As I explain in my new book, Private Vows: The Case for Ending State Regulation of Marriage and Divorce, the Founders of our great nation believed in the Natural Law, that, as stated in the Declaration of Independence, “we were endowed by Our Creator with certain unalienable rights” including the Right to Parent and the Right to Marry, rights that are forever entwined in Religious Liberty. When our Supreme Court, beginning in 1833, turned away from individual liberty in favor of majority rule, it turned against Natural Law. As Locke once said, Natural Law is right reason, that is purely ethical. Our Founders agreed, finding that government had no authority under the Constitution to compel anyone to do anything when it came to how to raise their children.

In 1888, the Supreme Court rejected the Founders and adopted a bastardized version of English marriage law that was based on the canons of the Anglican Church, forcing all Americans to adhere to what was, in England, a voluntary choice. The government was thus free to compel individuals to adhere to its rules, one being that a husband must support his children or be subject to state determined punishment. In 1973, the Supreme Court ruled that children had no right to financial support from their fathers, but if a state required fathers to support their children, it could not discriminate based on marital status. The federal government pounced, and issued laws requiring all fathers to support their children until age 18, creating an immense bureaucracy that puts the IRS to shame, to enforce that edict.

So, for this now 14-year-old boy, who will be forever traumatized, the rape is not over. It will continue for the next 15 years thanks to the federal government and the Supreme Court.

Alan W. Cohen is retired after more than 25 years as an attorney practicing Family Law. He is also the author of America Solved: A New Family for the 21st Century, a scathing review of what he calls The Child Support System.

Recent Past Blogs:

RIP: Herma Hill Kay, Creator of No-Fault Divorce, Destroyer of Traditional Marriage

Simple Health Care Solution Pits Capitalism Against Socialism

America at a Crossroads: Embrace Freedom, or Accept Totalitarianism

Three Important Lessons I Learned from Georgetown Professor Randy Barnett

Can Millennials Save Marriage in America? Studies Say Yes.

 

RIP: Herma Hill Kay, Creator of No-Fault Divorce, Destroyer of Traditional Marriage

By Alan W. Cohen

There is one law that neither state legislatures, nor the United States Congress, can destroy. That is the Law of Unintended Consequences, the law that suggests that drastic changes in the status quo might sound good on paper, but in reality lead to disastrous results. So it was with no-fault divorce, and its matriarch, the late University of California-Berkeley law professor Herma Hill Kay, who died last week at the age of 82. Kay, who was three times married, felt that the patriarchal society had imprisoned in her marriage, and wished that all women could be freed to make their own choices. Kay’s problem was not that she was wrong, but that her solution was completely one-sided, creating an full scale war on men that would be the focal point of second wave feminism.

Sharon Presley explains that in a 2015 essay that all Kay and the second wave feminists did was exchange one patriarchy for another. “Libertarians fail to see how women—or men—can be free of domination when they are dominated by a coercive government. If one of the goals of feminism to achieve a society in which women are free to make their own decisions about their own lives independent of the coercive domination of men, we fail to see how a government currently dominated by men is an improvement, let alone feminist.” Presley cites a discussion paper of the Association of Libertarian Feminists that stated in 1975: “…turning to the government just changes the sort of oppression women face, not the fact. Instead of being overburdened as mothers or wives, we become overburdened as taxpayers since child-care workers, doctors, etc., have to be paid by someone unless they are to be enslaved also! Turning to the government to solve our problems just replaces oppression by patriarchs we know—father, husband, boss—with oppression by patriarchs we don’t know—the hordes of legislators and bureaucrats who are increasingly prying into every nook and cranny of our lives!”

As I explain in my new book, Private Vows: The Case for Ending State Regulation of Marriage and Divorce, state and federal coercion has no constitutional validity, but rather is based on the patriarchy of the Anglican Church, where a woman was property of her husband, and confined as the United States Supreme Court said in Bradwell v. State in 1873 to the role of wife and mother.  Religious freedom is forever intertwined in marriage and parenthood, and the state and federal adoption of the canons of a particular religion are directly counter to our Founding documents. Yet, for a century after, the price of confining women to their predetermined role bore squarely on men who, as modern day writers such as Camille Paglia have pointed out, were pushed to take on professions that could daily end their lives And, thanks to Kay, men continued to pay the price as all fifty states adopted her solution, one that permitted women freedom, but continued to place the financial burden of marriage and eventual divorce on both their husbands and their children. Further, as psychologist Barbara Whitehead pointed out in her iconic study, enshrined in her book, The Divorce Culture, women were the instigators of divorce 85 percent of the time, and their reasons had little to do with the actions of their husbands. Rather, women sought some form of nirvana that they called happiness, a place that Aristotle tells us exists only after a lifetime of achievement.

Instead of freedom, all that Kay achieved for women was weakening of both men and women. Permitting the easy escape from a contractual commitment without dire consequences greatly diminished the nature of the bond. Marriages morphed from a lifetime choice to a temporary one. Marriage is hard work. As a result of the no fault divorce, first women, and later men, decided that it is not really worth the effort, and pale in comparison to the emotional strength of their ancestors. Can you picture the spoiled snowflakes of today living in the harsh realities of the 19th Century?
They wouldn’t make it through a single day without folding. Life is not a fantasy. Chick flicks remain stalwart in their romantic belief that the wedding is the beginning rather than the end of the story of life happily ever after. Reality is far from it.

Camille Paglia puts it best when she writes, “women have lost the daylong companionship and solidarity they once enjoyed with other women when they ruled the private sphere. … An enlightened feminism, animated by a courageous code of personal responsibility, can only be built upon a wary alliance of strong women and strong men.”

From her pen to God’s ears.

Alan W. Cohen is retired after more than 25 years as a family law attorney. He is a  blogger and author. He is also the author of the 2015 book, America Solved: A New Family for the 21st Century.

Some of his recent blog posts:

America at a Crossroads: Embrace Freedom, or Accept Totalitarianism

Three Important Lessons I Learned from Georgetown Professor Randy Barnett

Climate Change Non-Deniers Need to Open Up Collective Brains to Capitalism

Can Millennials Save Marriage in America? Studies Say Yes.

Journalistic Ethics is a Myth, Just Like in Any Other Business; Long Live Journalism

Tomi Lahren Touches The Soul of the Libertarian on Abortion Question

 

Simple Health Care Solution Pits Capitalism Against Socialism

By Alan W. Cohen

Are you tired of the bickering in Washington, D.C., over health care? Today, House Speaker Paul Ryan promised real reform even though the House bill is worse than the disease. Yesterday, socialists Bernie Sanders and Elizabeth Warren accused Republicans of causing the death of millions of Americans with their proposals to dump Obamacare. It’s the theater of the absurd.

Over here in Missouri, at the center of our nation, all we know is that our choices for health insurance are dwindling daily as premiums continue to skyrocket. President Donald Trump claims Obamacare is in a death spiral. Democrats and the media claim otherwise, calling out Republicans for forging a new health care bill behind the scenes when that is exactly what the Democrats did in creating it. It’s exasperating. There is truly a complete disconnect. There is Washington and there is reality. Never the two shall meet.

So, what is the solution? How about this: Simplify. We have 35 states that are completely red. We have 15 states that are either completely blue, or some shade of violet. Let them compete against each other. Let the blue states have their Obamacare. Grant a waiver to any state where the number of insurers is noncompetitive, say at least six. Block grant to those states Medicaid funds to cover those without insurance, and suggest strongly that they permit the sale of policies across state lines, and let the free market do its magic. Historically, states have been melting pots of ideas, permitting human creativity to find solutions that certainly no one in Washington. D.C., is capable. States might contract with hospitals to provide services to the poor for far less. States might adopt medical malpractice reforms such that it would entice the best of doctors. States might be competing to attract the best patient care, and thus attract the best businesses, create the best schools, and so on. Heck, states may do without insurance all together and permit providers to sell their services on the open market, just like most dentists have successfully done since they rejected Medicare fifty years ago. The possibilities are endless.

What about the blue states? It’s up to them. Today in the news, the State of Illinois, a blue state, is nearing bankruptcy. And, of course, there is California and New York, each teetering on the ends of socialist policies, raising taxes to such extremes that people are fleeing to Texas and California by the millions. Blue states can continue to commit financial suicide or they can choose. Illinois Republican governor Bruce Rauner has been fighting Democrats to save Illinois from filing bankruptcy since his election three years ago. And he’s losing. Margaret Thatcher said it best. Socialism works until they run out of other people’s money.

When you pit capitalism against socialism, capitalism will win out. Just as it always does.

Alan W. Cohen is a retired attorney, blogger and author. His new book, Private Vows: The Case for Ending State Regulation of Marriage and Divorce is available on Amazon.

Recent blogs:

Memo to Elite Media from Mid-America: We Don’t Care! So, Shut Up Already!

America at a Crossroads: Embrace Freedom, or Accept Totalitarianism

Trump Travel Ban Highlights Political Conflicts Inside American Judicial System

Climate Change Non-Deniers Need to Open Up Collective Brains to Capitalism

Can Millennials Save Marriage in America? Studies Say Yes.

Hear Me Bernie Sanders: There is No Constitutional Right to Health Care

 

Why Anti-Sharia Protests Are Misguided

By Alan W. Cohen

History dictates that anti-Sharia protests are both wrongheaded and unconstitutional.

In 1862, Congress passed its first attempt to destroy a religion that competed with the Christian majority. The Anti-Bigamy laws pushed the followers of the Mormon faith outside the boundaries of the states and into a God forsaken land surrounding an undrinkable lake. A decade later, federal prosecutors were hot on the trail of those individuals that continued to live in Mormonism despite federal edicts. In 1879, the case came before the Supreme Court as an unfortunate man by the name of Reynolds was found guilty for the act of practicing his faith as guaranteed under the First Amendment. Unfortunately for Mr.Reynolds, however, the White Christian majority of the Supreme Court did not agree, finding that polygamy was immoral and had no place in Western Civilization. Almost two decades later, Utah was permitted to enter into the Union only on the condition that it ban polygamy.

Fast forward to 2013. Thanks to the work of George Washington University law school professor Jonathan Turley, the State of Utah files with the federal court an affidavit promising to end prosecution of polygamy. That’s right. Despite the furious, but fruitless, prosecutions, polygamy survived, and at the turn of the 21st century became a popular fare in television shows Big Love and Sister Wives. And, what would happen if polygamists demanded the right to license polygamous marriages? Given the Supreme Court’s latest decision on same-sex marriage, as I explain in my new book, Private Vows: The Case for Ending State Regulation of Marriage and Divorce, the federal courts would have no choice but to find that the state has no authority under the Constitution to license marriage, much less dictate the private conduct of those engaged in purely private behavior when it comes to the family. In fact, as I argue in Private Vows, the federal court would have to find that the legal basis for regulating marriage and divorce is a violation of religious liberty because the Supreme Court in 1888 adopted a bastardized interpretation of the Anglican Church’s canons regarding marriage and divorce and made it part of American law, and it did so to promote the same racist and bigoted agenda as the Ku Klux Klan.

But I digress. Why did polygamy survive? As the Supreme Court noted in a late 19th Century decision, prosecuting it required cooperating witnesses, and that would require that those actively practicing polygamy would have to testify. It proved to be an impossible burden. As long as they do no harm to others, or commit no other crime, people who wish to be free to practice their faith will do so even in the face of an intrusive and powerful federal government. The same can be said for those that want to live under Sharia Law. True believers are not going to come forward to testify against violators.

So, what’s the answer to those that fear the voices of those that would oppose the religious liberty of others, and wish to, as the Supreme Court did in the late 19th Century, impose a specific set of beliefs on the rest of the nation? Should we exclude Muslims from entering the country the way that President Trump is supposed to have done with his travel ban? Clearly, we could not even if we wanted to do so. Rather, we must turn to the reason our forefathers came to America in the first place: Freedom. Only by promoting the liberties of others can we truly be free. Only by respecting the beliefs of others can we truly be the nation that our Founders espoused. For those that say that Sharia Law professes hate speech, the answer is more speech, not prohibition. Will those that advocate for Sharia Law ever understand? Of course not. But the same freedom that permits them to worship will be their greatest obstacle to the world domination they desire.

Alan W. Cohen is a retired attorney, blogger and author. 

Recent past blogs:

Islamist Victory in Antisemitic Public Relations Battle Spells Doom for Freedom, Completes Conquest of Europe

Memo to Elite Media from Mid-America: We Don’t Care! So, Shut Up Already!

Trump Travel Ban Highlights Political Conflicts Inside American Judicial System

Three Important Lessons I Learned from Georgetown Professor Randy Barnett

Easter Message: Why Religion is Vital to Maintaining Our Liberty

Susan Rice and Unmasking: Where is the Democrats’ Moral Compass?

Shocker: Sanctuary Cities Now Claiming Federal Funding is an Entitlement

Syria Bombing: Why History Trumps Libertarian Beliefs