!!!!
David Blankenhorn
November 6, 2015
David Blankenhorn Gets Another “F”
More than 60 legal scholars invoked Abraham Lincoln in a recent document urging both private citizens and officials at all levels of government to view the decision as illegitimate and against the constitution and to act that way.
Call to Action Scholars Statement
We have great respect for judges. We have even greater respect for law. When judges behave lawlessly, it is the law that must be honored, not lawless judges.
The Supreme Court is supreme in the federal judicial system. But the justices are not supreme over the other branches of government. And they are certainly not supreme over the Constitution.
In Obergefell v. Hodges, five justices, without the slightest warrant in the text, logic, structure, or historical understanding of the Constitution presumed to declare unconstitutional the marriage laws of states that maintain the historic and sound understanding of marriage as the conjugal union of husband and wife.
Obergefell is not “the law of the land.” It has no more claim to that status than Dred Scott v. Sandford had when President 74Abraham Lincoln condemned that pro-slavery decision as an offense against the very Constitution that the Supreme Court justices responsible for that atrocious ruling purported to be upholding.
Lincoln warned that for the people and their elected leaders to treat unconstitutional decisions of the Supreme Court as creating a binding rule on anyone other than the parties to the particular case would be for “the people [to] have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.”
Because we stand with President Lincoln against judicial despotism, we also stand with these distinguished legal scholars {see below for the statement and list of scholars} who are calling on officeholders to reject Obergefell as an unconstitutional effort to usurp the authority vested by the Constitution in the people and their representatives. At the same time, we stand with the four dissenting Supreme Court justices in Obergefell who rightly noted that the judicially imposed redefinition of marriage is a judicial power grab that will — as Justice Alito wrote in his dissent — “vilify Americans who are unwilling to assent to the new orthodoxy.”
As the 2016 election season heats up, we call on all who aspire to be our next President to pledge to
- treat Obergefell, not as “the law of the land,” but rather (to once again quote Justice Alito) as “an abuse of judicial power”
- refuse to recognize Obergefell as creating a binding rule controlling other cases or their own conduct as President
- appoint judges and justices who respect the constitutional limits of their power, and
- support the First Amendment Defense Act to protect the conscience and free speech rights of those who hold fast to the conjugal understanding of marriage as the union of husband and wife.
Like Lincoln, we will not accept judicial edicts that undermine the sovereignty of the people, the Rule of Law, and the supremacy of the Constitution. We will resist them by every peaceful and honorable means. We will not be bullied into acquiescence or silence. We will fight for the Constitution and our beloved Nation.
The scholars, who include Professors Robert George of Princeton, Matthew Franck of Radford University and Hadley Arkes of Amherst, argue that this is precisely what Lincoln did in the aftermath of the Dred Scott decision of the Supreme Court some thought denied citizenship to all blacks in the United States.
{I cannot tell you how happy I am to learn that I anticipated the opinion of these famous legal scholars when immediately after the Obergefell decision I wrote that it was not the law of the land because it fell into the same category of judicial error as the infamous Dred Scott decision written by Chief Justice Roger Taney. I am embarrassed to write that both Taney and Anthony Kennedy (the author of Obergefell) ‘were’ Catholics. Later, when the scandal of the Vatican repudiation of Pope Francis’ meeting with Kim Davis hit the front page of the New York Times I repeated that Kim Davis was just a correct in ignoring Obergfell as President Lincoln was in ignoring Dred Scott.}
Lincoln rightly questioned the notion of judicial supremacy, that the Supreme Court is the law of the land rather than the constitution.
Lincoln viewed Dred Scott as illegitimate and he ignored it as a general law of the land. In fact, he directed departments of the government to ignore the decision and to grant a passport to a black man who wanted to travel to France, though only U.S. citizens could receive passports. Additionally, the U.S. patent office granted a patent to a black man even though patents could only be granted to U.S. citizens.
Erstwhile pro-family advocate David Blankenhorn took to the pages of The American Interest to show his outrage at what he views as the extremist and even lawless positions George et al. have taken. He takes special umbrage that the scholars have drafted Lincoln to their cause as well.
Not long ago, Blankenhorn would have stood with Professor George, but no longer.
David Blankenhorn was a respected scholar and advocate for the traditional family. He was a recognized leader in the movement that sought to restore and protect the family as the incubator of virtuous people and virtuous citizens.
Blankenhorn wrote books, articles, spoke at conferences, indeed organized them. He was viewed properly as one of the strongest and most important voices in defending the family.
Along came the call by those with same-sex attraction to be given the right to marry and Blankenhorn began to waver. It is one thing to tout the importance of family, quite another to exclude anyone from that definition, especially those who are the gatekeepers of polite society. His wavering became tottering.
Blankenhorn was called as one of the chief witnesses for the defense in the Proposition 8 trial in California, the proposition voted overwhelmingly by the citizens of California in favor of man-woman marriage. At that very moment, however, Blankenhorn had begun to think same-sex “marriage” would be a good thing. He said so on the stand. He said it would be good for America. We discovered later that the lawyer who represented traditional marriage was at that moment planning the wedding of his lesbian stepdaughter to her lover, but that is another story.
Though Blankenhorn said it would be a good thing for the country for two men to be able to marry, he had not yet come out full bore for faux marriage. That came later in—what else—a column in the New York Times. His tottering became a full collapse.
Blankenhorn said sodomitical love is equal in dignity to that between a man and a woman. Of course, this is not true for one is normal and natural and the other not. He said recognizing such couplings is simply fair and that the emerging consensus of “elites” and youngsters makes this so. He said he was weary of the “culture wars.” Surrender in this case was inevitable.
Blankenhorn shortly thereafter formed something he calls the Marriage Opportunity Council that purports to promote stability in all marriages, normal and not. This group includes mostly lefties but also other marriage quislings who are otherwise thought of as “conservative.”
I must admit Blankenhorn had never crossed my mind since he betrayed the marriage cause in 2012, but then he raised his colors on marriage, Obergefell, and Lincoln. His argument about Lincoln hangs largely on a single quote of dubious provenance. Lincoln supposedly said, ““The Supreme Court of the United States is the tribunal to decide such questions [the constitutionality of laws on slavery], and we [Republicans] will submit to its decisions; and if you [Democrats] do also, there will be an end of the matter.”
The problem is, Lincoln never said it. In fact, while it was attributed to him, he later explicitly denied it. The quote came from the memory—not even the notes—of a reporter.
Matthew Franck immediately struck back in the pages of National Review citing multiple quotes from Lincoln’s own writing supporting the position now cited by those who call for disavowal of Obergefell. Hadley Arkes did the same in the pages of the Public Discourse.
Blankenhorn criticizes the legal scholars’ document because they use only a single quote from Lincoln so both Franck and Arkes provide many more, something a scholar of Blankenhorn’s self-regard likely could have found himself.
Franck and Arkes provide quotes from his speeches, debates, and notes backing up their claim that Lincoln viewed judicial supremacy and Dred Scott in precisely the way the legal scholars view judicial supremacy and Obergefell. Moreover, they provide examples of how his views were practiced by his administration.
In taking down Blankenhorn, both Franck and Arkes did so with a fair amount of sarcasm, at least the kind that is allowed in the academy and I must admit a fair amount of joy I took in this, particularly given Blankenhorn’s rather inflated view of himself.
About the phony quote that holds up Blankenhorn’s creaky argument, Franck says, “[Blankenhorn] evidently does not know that Lincoln effectively claimed never to have stated the position Blankenhorn attributes to him.”
Where Blankenhorn asserts his own authority for having “studied under” Lincoln scholar David Donald, Franck says, “but he has not studied Lincoln himself closely enough.”
Franck charges Blankenhorn with selective quotations, which is the academic equivalent of at least fibbing.
Arkes goes even stronger, referring to Blankenhorn not as a friend but “a friend of years gone by.” He says, “The restatement of Lincoln’s teaching seemed to be jolting because it brought him news, something so novel, he reckoned, that it couldn’t be true.” If you know Hadley’s voice you can even hear the gentle yet pointed sarcasm.
Arkes, too, pokes a bit of fun at Blankenhorn’s assertion about his own learning: “[Blankenhorn] made a point of telling us about studying at the feet of David Donald” who Arkes criticizes for “treating as risible Lincoln’s understanding of ‘all men are created equal.’”
“That Blankenhorn learned his history from this source explains what has been filtered from his understanding of Lincoln…,” says Arkes.
It appears that Blankenhorn’s scholarship is as faux as the faux marriage he now supports.
We should thank God for those who have not turned tail and run on this most important issue of our time. We can be sure Lincoln would never have.
By Austin Ruse
Austin Ruse is president of C-FAM (Center for Family & Human Rights), a New York and Washington DC-based research institute focusing on international legal and social policy. The views expressed here are not necessarily those of C-FAM.
*********
Statement Calling for Constitutional Resistance to Obergefell v. Hodges
We are scholars and informed citizens deeply concerned by the edict of the Supreme Court of the United States in Obergefell v. Hodges wherein the Court decreed, by the narrowest of margins, that every state in the country must redefine marriage to include same-sex relationships. 
The Court’s majority opinion eschewed reliance on the text, logic, structure, or original understanding of the Constitution, as well as the Court’s own interpretative doctrines and precedents, and supplied no compelling reasoning to show why it is unjustified for the laws of the states to sustain marriage as it has been understood for millennia as the union of husband and wife.
The opinion for the Court substituted for traditional—and sound—methods of constitutional interpretation a new and ill-defined jurisprudence of identity—one that abused the moral concept of human dignity.
The four dissenting justices are right to reject the majority opinion in unsparing terms.
Justice Scalia refers to it as “a naked judicial claim to legislative….power; a claim fundamentally at odds with our system of government.”
Justice Thomas says the opinion “exalts judges at the expense of the People from whom they derive their authority” as it perverts the meaning of liberty into an entitlement to government action.
Justice Alito calls attention to the well-established doctrine that the “liberty” guaranteed by the due process clause protects only those rights “that are deeply rooted in this Nation’s history and tradition,” and that it is “beyond dispute that the right to same-sex marriage is not among those rights.” He further points to the opinion’s tendency to reduce the purpose of marriage to “the happiness of persons who choose to marry.” He warns it will be used to “vilify Americans who are unwilling to assent to the new orthodoxy” and is yet another example of the “Court’s abuse of its authority.”
Chief Justice Roberts says “the Constitution leaves no doubt” that the majority’s “pretentious” opinion is incorrect. It even attempts to “sully those on the other side of the debate” in an “entirely gratuitous” manner.
If Obergefell is accepted as binding law, the consequences will be grave. Of the results that can be predicted with confidence, four stand out:
First, society will be harmed by being denied the right to hold out as normative, and particularly desirable, the only type of human relationship that every society must cultivate for its perpetuation. This compelling interest is strengthened by the fact that there is strong evidence to support what common sense suggests, namely, that children fare best when raised by their married mother and father who are both responsible for bringing them into the world and who provide maternal and paternal influences and care.
Second, individuals and organizations holding to the historic and natural understanding of marriage as a conjugal union—the covenantal partnership of one man and one woman—will be vilified, legally targeted, and denied constitutional rights in order to pressure them to conform to the new orthodoxy.
Third, the new jurisprudence of dignity is unlimited in principle and will encourage additional claims to redefine marriage and other long-established institutions.
Fourth, the right of all Americans to engage in democratic deliberation, and ultimately self-government, will be decisively undermined.
Any decision that brings about such evils would be questionable. One lacking anything remotely resembling a warrant in the text, logic, structure, or original understanding of the Constitution must be judged anti-constitutional and illegitimate. Obergefell should be declared to be such, and treated as such, by the other branches of government and by citizens of the United States.
In 1788, James Madison wrote, “The several departments being perfectly co-ordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers.”
In 1857, Abraham Lincoln said, “Judicial decisions are of greater or less authority as precedents, according to circumstances. That this should be so, accords both with common sense, and the customary understanding of the legal profession.” If a decision “had been made by the unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation, and with the steady practice of the departments throughout our history, and had been in no part, based on assumed historical facts which are not really true; or, if wanting in some of these, it had been before the court more than once, and had there been affirmed and re-affirmed through a course of years, it then might be, perhaps would be, factious, nay, even revolutionary, to not acquiesce in it as a precedent.” If, however, a decision is “wanting in all these claims to the public confidence,” it is “not factious” to resist it.
Obergefell is wanting in all these claims to the public confidence. It cannot therefore be taken to have settled the law of the United States.
Therefore:
We stand with James Madison and Abraham Lincoln in recognizing that the Constitution is not whatever a majority of Supreme Court justices say it is.
We remind all officeholders in the United States that they are pledged to uphold the Constitution of the United States, not the will of five members of the Supreme Court.
We call on all federal and state officeholders:
To refuse to accept Obergefell as binding precedent for all but the specific plaintiffs in that case.
To recognize the authority of states to define marriage, and the right of federal and state officeholders to act in accordance with those definitions.
To pledge full and mutual legal and political assistance to anyone who refuses to follow Obergefell for constitutionally protected reasons.
To open forthwith a broad and honest conversation on the means by which Americans may constitutionally resist and overturn the judicial usurpations evident in Obergefell.
We emphasize that the course of action we are here advocating is neither extreme nor disrespectful of the rule of law. Lincoln regarded the claim of supremacy for the Supreme Court in matters of constitutional interpretation as incompatible with the republican principles of the Constitution. Our position is summed up in Lincoln’s First Inaugural Address:
I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by other departments of the government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.
The proper understanding and definition of marriage is self-evidently a vital question affecting the whole people. To treat as “settled” and “the law of the land” the decision of five Supreme Court justices who, by their own admission, can find no warrant for their ruling in the text, logic, structure, or original understanding of the Constitution, would indeed be to resign our government into the hands of that eminent tribunal. That is something that no citizen or statesman who wishes to sustain the great experiment in ordered liberty bequeathed to us by our Founding Fathers should be willing to do.
Signatories
(Institutional affiliations are for identification purposes only)
Bradley C. S. Watson, Philip M. McKenna Chair in American and Western Political Thought and Professor of Politics, Saint Vincent College
John C. Eastman, Henry Salvatori Professor of Law & Community Service, Dale E. Fowler School of Law at Chapman University
George W. Dent, Jr., Professor of Law, Case Western Reserve University School of Law
Robert P. George, McCormick Professor of Jurisprudence, Princeton University, Founder of American Principles Project
Matthew J. Franck, Director, William E. and Carol G. Simon Center for Religion and the Constitution, Witherspoon Institute
Daniel J. Mahoney, Augustine Chair in Distinguished Scholarship, Assumption College
Stephen H. Balch, Director, Institute for the Study of Western Civilization, Texas Tech University
Mickey G. Craig, William & Berniece Grewcock Professor of Politics, Hillsdale College
Paul Moreno, William and Berniece Chair in US Constitutional History, Hillsdale College
Lucas E. Morel, Class of 1960 Professor of Ethics and Politics, Washington and Lee University
Joseph M. Knippenberg, Professor of Politics, Oglethorpe University
Susan Hanssen, Associate Professor of History, University of Dallas
Wm. Barclay Allen, Dean Emeritus, Michigan State University
Daniel C. Palm, Professor of Politics and International Relations, Azusa Pacific University
Lynn D. Wardle, Bruce C. Hafen Professor of Law, J. Reuben Clark Law School, Brigham Young University
Scott FitzGibbon, Professor of Law, Boston College Law School
Stephen Casey, Casey Law Office, P.C.
James C. Phillips, J.D.
Joshua W. Schulz, Associate Professor of Philosophy, DeSales University
John S. Baker, Jr., Professor Emeritus of Law, Louisiana State University Law Center
Ralph A. Rossum, Salvatori Professor of American Constitutionalism, Claremont McKenna College
Walter Schumm, Professor of Family Studies, Kansas State University
Anne Hendershott, Director of the Veritas Center for Ethics in Public Life, Franciscan University of Steubenville
Gerard V. Bradley, Professor of Law, University of Notre Dame
Christopher Wolfe, Professor of Politics, University of Dallas
Michael D. Breidenbach, Assistant Professor of History, Ave Maria University
Robert Koons, Professor of Philosophy, University of Texas at Austin
Stephen M. Krason, Professor of Political Science and Legal Studies, Franciscan University of Steubenville; President, Society of Catholic Social Scientists
Micah J. Watson, William-Spoelhof Teacher-Chair in Political Science, Calvin College
Daniel Robinson, Fellow, Faculty of Philosophy, University of Oxford
David Novak, J. Richard and Dorothy Shiff Chair of Jewish Studies and Professor of Religion and Philosophy, University of Toronto
Adam J. MacLeod, Associate Professor of Law, Thomas Goode Jones School of Law, Faulkner University
Robert Lowry Clinton, Emeritus Professor of Political Science, Southern Illinois University Carbondale
Colleen Sheehan, Professor of Political Science, Villanova University
Peter W. Wood, President, National Association of Scholars
Michael M. Uhlmann, Professor of Politics and Policy, Claremont Graduate University
John Agresto, Former president of St. John’s College, Santa Fe, and the American University of Iraq
Mark T. Mitchell, Professor of Government, Patrick Henry College
Carol M. Swain, Professor of Political Science and Law, Vanderbilt University
Nathan Schlueter, Associate Professor of Philosophy, Hillsdale College
J. Daryl Charles, Affiliated Scholar, John Jay Institute
Ted McAllister, Edward L. Gaylord Chair and Associate Professor of Public Policy, Pepperdine University
David R. Upham, Associate Professor of Politics, University of Dallas
Thomas D’Andrea, Fellow, Wolfson College, University of Cambridge; Director, Institute for the Study of Philosophy, Politics, and Religion
Daniel Mark, Assistant Professor of Political Science, Villanova University
Hadley P. Arkes, Edward N. Ney Professor of Jurisprudence Emeritus, Amherst College; Director, James Wilson Institute on Naturals Right and the American Founding
Philip Bess, Professor of Architecture, University of Notre Dame
Jeffery J. Ventrella, Senior Counsel and Senior Vice-President of Student Training and Development, Alliance Defending Freedom
Teresa S. Collett, Professor of Law, University of St. Thomas School of Law
Jay Bergman, Professor of History, Central Connecticut State University
Robert L. McFarland, Associate Dean of External Affairs and Associate Professor of Law, Thomas Goode Jones School of Law, Faulkner University
Carson Holloway, Associate Professor Political Science, University of Nebraska, Omaha
Gary D. Glenn, Distinguished Teaching Professor Emeritus, Northern Illinois University
Paul A. Rahe, Charles O. Lee and Louise K. Lee Chair in Western Heritage, Hillsdale College
Angelo Codevilla, Professor Emeritus, Boston University
Bradley P. Jacob, Associate Professor of Law, Regent University School of Law
Raymond B. Marcin, Professor of Law Emeritus, The Catholic University of America
Matthew Spalding, Associate Vice President and Dean, Allen P. Kirby Center for Constitutional Studies and Citizenship, Hillsdale College
James A. Davids, Associate Professor of Law, Regent University School of Law
Ken Masugi, Senior Fellow, Claremont Institute
Edward J. Erler, Professor of Political Science Emeritus, California State University, San Bernardino
James W. (Jim) Richardson, Board of Directors, Christian Legal Society
Robert F. Sasseen, President and Professor of Politics Emeritus, University of Dallas
Lynne Marie Kohm, John Brown McCarty Professor of Family Law and Associate Dean of Faculty Development and External Affairs, Regent University School of Law
Steven D. Smith, Warren Distinguished Professor of Law, University of San Diego
Bernard Dobranski, Dean Emeritus and Professor of Law, Ave Maria School of Law
Lee J. Strang, John W. Stoepler Professor of Law & Values, University of Toledo College of Law
Daniel D. Barnhizer, Professor of Law, Michigan State University College of Law
Adam Candeub, Professor of Law; Director, Intellectual Property, Information, and Communications Law Program, Michigan State University College of Law
Glenn S. Sunshine, Professor, Department of History, Central Connecticut State University
Travis Ricketts, Professor of History and Government, Bryan College
Dean R. Broyles, Esq., Founder & Chief Counsel, The National Center for Law & Policy
ABYSSUS ABYSSUM INVOCAT / DEEP CALLS TO DEEP 
You must be logged in to post a comment.