The Supreme Court Damns Itself at the Expense of the States
Jan 27, 2022 by David Fowler
When, in 1938, in Erie Railroad v. Thompkins, the United States Supreme Court denied the existence of any transcendent authority and the possibility of any fundamental law, it was bound to go wrong, and it did. Its damnable arrogance in relation to the transcendent creator God reached full flower in 2015 when it took back the transcendent authority it had earlier said belonged to the states. Will our state elected officials say to the Supreme Court, “Enough!”
To appreciate how damnable the United States Supreme Court has become by what it did in 2015, you need some context.
Supreme Court Endorses Polytheism.
As I noted last week, in the Erie decision the Court said that there was no transcendent (fundamentally true) law, the application of which was worked out in what we call common law.
To provide some basis of authority for the common law, the Court had to come up with something. So it said the common law “exist[s] by authority of the state.”
In other words, the 50 states became the transcendent god for their state. Sociologists would call that polytheism.
How the Common Law and Statutory Law Work Together.
The common law was also considered the starting point for enactment of statutory law.
William Blackstone, who has been described by the United States Supreme Court as “the preeminent authority on English law for the founding generation,” said, “Statutes . . . are either declaratory of the common law, or remedial of some defects therein.”
The United States Supreme Court, in Munn v. Illinois (1877), said the same thing, “[T]he great office of statutes is to remedy defects in the common law as they are developed, and to adapt it to the changes of time and circumstances.”
In other words, written and enacted laws—statutes and constitutions—are not just things we make up out of our own heads. They rests on the common law which, prior to 1938, was understood to rest on the existence of a transcendent, and therefore, antecedent law “written” by God into the nature of things.
How the Common Law and Statutory Law Worked Together Regarding Marriage.
This interplay between common law and statutory law can be seen in regard to marriage.
The common law acknowledged that as to “things in themselves indifferent, [they] become either right or wrong, just or unjust, duties or misdemeanors (sic), according as the municipal legislator sees proper, for promoting the welfare of the society, and more effectually carrying on the purposes of civil life.” Blackstone’s Commentaries (emphasis added).
“Thus,” said Blackstone, “our own common law has declared, that the goods of the wife do instantly upon marriage become the property and right of the husband.” This was known as “coverture.”
As various aspects of civil life developed, legislative bodies determined, by statute, to abolish coverture as an adjunct to marriage.
But neither judges nor legislators would have considered the fundamental nature of a marital relationship as that between a man and woman as husband and wife “a thing in itself indifferent.”
Man, woman, and the marital relation, as “things” God created according to an eternal law conforming to His will and purpose, could not have been a thing about which civil law could be indifferent, unlike property arrangements between the two.
The U.S. Supreme Court Gets the Common Law Wrong.
The U.S. Supreme Court, having repudiated the transcendent in 1938, could not have an historically right and true conception of the common law or, consequently, its relation to statutory law. That became evident in the United States Supreme Court’s 2015 marriage decision known as Obergefell v. Hodges.
The Court reasoned to its assertion that marriage is a no longer an institution normed by the existence of two complementarian biological sexes as follows:
Then the Court concluded:
To those familiar with the common law and Blackstone’s Commentaries, the conclusion that the abolition of coverture or anything else the common law considered non-essential to the nature of marriage “transform[ed] its structure” is nothing but a mile high pile of excrement produced by large solid-hoofed herbivorous ungulate mammals!
The Court Gets the Statutory Law Wrong.
Moreover, because the Court got the common law wrong, it got the relationship between state marriage statutes and common law wrong too. The Court said the statutes were “enacting” marital policy rather than providing a statutory licensing scheme as a means of “evidence by which marriages may be proved,” which is what the Court said over 100 years earlier in Meister v Moore.
How embarrassing to be a United States Supreme Court justice and not know what law is, be wrong about what it is, and overlook the Court’s prior precedents (Meister and Munn).
What was going on here?
The Court ignored or was clueless about the common law’s distinction between things about which civil government can be indifferent and those about which it cannot. Thus, it was able define the essential element of male and female out of marriage.
Then, it wrongly said that statutes were creating a policy rather than reflecting and working from an existing policy about marriage found in the common law.
With its disregard of its own precedents about common law, it was able to take back the transcendence it had given the states in regard to common law and marriage policy built on the common law.
The Supreme Court Rejects Polytheism for Monotheism
The temptation is always strong to be God if we think God doesn’t exist. In Obergefell, the temptation to be God became too great.
It was damnable enough in God’s sight for the Court to repudiate transcendence and transfer it to the states back in 1938. But in Obergefell, the Court took that transcendence back and sought to impose its “sovereign” will (“will” being a legislative function, not a judicial one) on the entire nation. Trying to play God in place of the real, living God is damnable in His sight.
It is time for Tennessee’s legislature to say, “Enough” to the Supreme Court. The Court is not God and marriage is a state policy matter. Enacting the Marital Contract Recording Act (Senate Billl 562/House Bill 233) is the way the Legislature can do that.
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006.
To appreciate how damnable the United States Supreme Court has become by what it did in 2015, you need some context.
Supreme Court Endorses Polytheism.
As I noted last week, in the Erie decision the Court said that there was no transcendent (fundamentally true) law, the application of which was worked out in what we call common law.
To provide some basis of authority for the common law, the Court had to come up with something. So it said the common law “exist[s] by authority of the state.”
In other words, the 50 states became the transcendent god for their state. Sociologists would call that polytheism.
How the Common Law and Statutory Law Work Together.
The common law was also considered the starting point for enactment of statutory law.
William Blackstone, who has been described by the United States Supreme Court as “the preeminent authority on English law for the founding generation,” said, “Statutes . . . are either declaratory of the common law, or remedial of some defects therein.”
The United States Supreme Court, in Munn v. Illinois (1877), said the same thing, “[T]he great office of statutes is to remedy defects in the common law as they are developed, and to adapt it to the changes of time and circumstances.”
In other words, written and enacted laws—statutes and constitutions—are not just things we make up out of our own heads. They rests on the common law which, prior to 1938, was understood to rest on the existence of a transcendent, and therefore, antecedent law “written” by God into the nature of things.
How the Common Law and Statutory Law Worked Together Regarding Marriage.
This interplay between common law and statutory law can be seen in regard to marriage.
The common law acknowledged that as to “things in themselves indifferent, [they] become either right or wrong, just or unjust, duties or misdemeanors (sic), according as the municipal legislator sees proper, for promoting the welfare of the society, and more effectually carrying on the purposes of civil life.” Blackstone’s Commentaries (emphasis added).
“Thus,” said Blackstone, “our own common law has declared, that the goods of the wife do instantly upon marriage become the property and right of the husband.” This was known as “coverture.”
As various aspects of civil life developed, legislative bodies determined, by statute, to abolish coverture as an adjunct to marriage.
But neither judges nor legislators would have considered the fundamental nature of a marital relationship as that between a man and woman as husband and wife “a thing in itself indifferent.”
Man, woman, and the marital relation, as “things” God created according to an eternal law conforming to His will and purpose, could not have been a thing about which civil law could be indifferent, unlike property arrangements between the two.
The U.S. Supreme Court Gets the Common Law Wrong.
The U.S. Supreme Court, having repudiated the transcendent in 1938, could not have an historically right and true conception of the common law or, consequently, its relation to statutory law. That became evident in the United States Supreme Court’s 2015 marriage decision known as Obergefell v. Hodges.
The Court reasoned to its assertion that marriage is a no longer an institution normed by the existence of two complementarian biological sexes as follows:
As the role and status of women changed, the institution further evolved. Under the centuries-old doctrine of coverture, a married man and woman were treated by the State as a single, male-dominated legal entity. As women gained legal, political, and property rights, and as society began to understand that women have their own equal dignity, the law of coverture was abandoned. (emphasis added).
Then the Court concluded:
These and other developments were not mere superficial changes. Rather, they worked deep transformations in its structure, affecting aspects of marriage long viewed by many as essential.
To those familiar with the common law and Blackstone’s Commentaries, the conclusion that the abolition of coverture or anything else the common law considered non-essential to the nature of marriage “transform[ed] its structure” is nothing but a mile high pile of excrement produced by large solid-hoofed herbivorous ungulate mammals!
The Court Gets the Statutory Law Wrong.
Moreover, because the Court got the common law wrong, it got the relationship between state marriage statutes and common law wrong too. The Court said the statutes were “enacting” marital policy rather than providing a statutory licensing scheme as a means of “evidence by which marriages may be proved,” which is what the Court said over 100 years earlier in Meister v Moore.
How embarrassing to be a United States Supreme Court justice and not know what law is, be wrong about what it is, and overlook the Court’s prior precedents (Meister and Munn).
What was going on here?
The Court ignored or was clueless about the common law’s distinction between things about which civil government can be indifferent and those about which it cannot. Thus, it was able define the essential element of male and female out of marriage.
Then, it wrongly said that statutes were creating a policy rather than reflecting and working from an existing policy about marriage found in the common law.
With its disregard of its own precedents about common law, it was able to take back the transcendence it had given the states in regard to common law and marriage policy built on the common law.
The Supreme Court Rejects Polytheism for Monotheism
The temptation is always strong to be God if we think God doesn’t exist. In Obergefell, the temptation to be God became too great.
It was damnable enough in God’s sight for the Court to repudiate transcendence and transfer it to the states back in 1938. But in Obergefell, the Court took that transcendence back and sought to impose its “sovereign” will (“will” being a legislative function, not a judicial one) on the entire nation. Trying to play God in place of the real, living God is damnable in His sight.
It is time for Tennessee’s legislature to say, “Enough” to the Supreme Court. The Court is not God and marriage is a state policy matter. Enacting the Marital Contract Recording Act (Senate Billl 562/House Bill 233) is the way the Legislature can do that.
Click here to learn more about the Marital Contract Recording Act.
Make sure you tell the governor (615-741-2100) and your legislators your thoughts on this matter.
Make sure you tell the governor (615-741-2100) and your legislators your thoughts on this matter.
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006.
