What Dobbs Left Out

Conversations That Matter

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Welcome once again, everyone, to Conversations That Matter podcast. I'm your host, John Harris, as always, with a guest today to talk about an important subject.

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Actually, we've talked about the Dobbs decision here a couple of times, both before and after the decision, since it was leaked.

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And today I have with me actually a lawyer. I have David Fowler with me from FAC Tennessee.

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That's FACT Tennessee, F -A -C -Tennessee .org. And he has a podcast called

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God, Law and Liberty and does work on behalf of the Alliance for Law and Liberty in the realm of marriage and life issues.

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And so I guess for a lawyer, I want to say Dr. Fowler, I guess. What do you say? Mr. Fowler, David.

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The Honorable David Fowler Esquire. I'm a former senator, so some people still call me

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Senator Fowler. I could do that. But David, David's the name my mother preferred and I vote for that.

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All right. Well, David, I appreciate you being willing to discuss this because I haven't heard a lot of negative critiques.

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And I know you're happy about the Dobbs decision in some ways, but I know you think it's unstable.

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So I was hoping maybe you could just flesh that out for us a little bit. What are the concerns you have? I know you've written about it, about this decision.

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Sure. And as I said, anybody that's pro -life, anybody that appreciates that we're all persons from the moment of conception, we're human beings, should rejoice that this abomination called

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Roe versus Wade was reversed. Hands down, that's a good thing.

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I think we also need to appreciate. So let me let me say this in advance of some of my critiques. One of the challenges of being on the

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Supreme Court is to get rid of something like Roe. You have to get five votes. So in many ways, it's the politics of the court.

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We would like to think that they're above politics, but they're not.

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I mean, you know, when I ran for office 20 years ago, people said, well, what do you know about politics?

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And I said, are you kidding? I was a choir director in a Baptist church. I know all about politics. You know, we don't sing enough of this song.

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Too many of these songs, you know, whatever it is. The anthem's too long. Why don't you let this soloist sing more?

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So I get it. So in this case, you had five people that wanted to get rid of Roe, knew that it was wrong.

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The downside was Justice Kavanaugh. He will prove to be, I believe, our our

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Justice Kennedy over the next however long he's on the court. And and he wanted to find the half measure of saying, how can we get rid of Roe, but not get rid of some of our other made up decisions like to same sex marriage?

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Justice Thomas was the senior judge. He could have written the opinion. But as you can tell from his concurring opinion and the

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Second Amendment opinion released the day before, he would have just obliterated the whole thing. And he said that, you know, now that we've gotten rid of Roe, we need to get rid of Obergefell and same sex marriage.

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Right. So he knew he couldn't get Kavanaugh's vote. So he assigned the opinion to Alito and said, write something that that Kennedy can sign.

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And I'll sign it because I'm willing to get rid of the whole shebang. You know, so there are no made up rights.

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This one's made up. And so I can agree to get rid of a made up right. But but get Kennedy on board.

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So so we had to get Kavanaugh had a needle a little bit. Yeah. And so he did say some other good things.

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He talked about the life in the womb, that it was a life. He talked about it and in terms that essentially undermine the notion that the unborn aren't persons.

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But he couldn't say that and get Kennedy. So anyway, but therein lies the downside.

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That in essence, while we should cheer that Roe is reversed. We should realize that we've said what it means to be a person.

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Entitled to the protection of law is not dependent upon whether your life comes from outside you is given to you by God, but it's something we vote on.

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Now, when you carry that principle to its logical end, we can decide that any number of persons might not be persons if we get to vote for them.

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And everybody, of course, say, well, we shouldn't get rid of Christians. Right. Because, well, I mean, they're persons.

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They're born. Well, you know what makes them persons?

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Well, the fact that they have life. Oh, well, that's the same thing that exists in the unborn. Right.

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So if you're going to put it to a vote, you have to be saying something other than life is what makes you a person.

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Well, what would be that other thing? It can only be a law that man enacts that says we will treat you as a person.

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Well, that's the problem the Jews had. They were human beings. Right. But they weren't really persons.

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I mean, we all knew that. Right. Same thing was true in Dred Scott with the slaves and the descendants of slaves.

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They said, well, you couldn't be a citizen of the United States because you were considered an insubordinate and inferior class of beings.

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You couldn't rise to that level. So we should really rejoice, but be dismayed that we still live in Babylon.

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In other words, you know, they were in Babylon. God said, hey, pray for the welfare of the city.

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I know the plans I have for you, but you're still in Babylon and you're going to be here for 70 years. We still have the unborn classified as non persons in our law.

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And we need to recognize that that's what we have.

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And that's where. I would personally, just to be honest, fault the pro -life community.

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Because we've never asked the question, what is a person?

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The due process clause applies to persons, it says no person shall be deprived of life, liberty or property without due process of law.

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So to know if that clause applies to a woman or an unborn, you have to know, is a woman a person?

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Is the unborn a person? Until you resolve that, you don't even know if the clause applies. Right? Right. So the pro -life community has always fought on the woman's frame of argument.

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Skipping over the question of persons to let's redefine the word liberty. So we argued about liberty without ever arguing or even asserting that the unborn were actually persons and therefore.

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Entitled to the liberty they possess in the womb, the life they possess in the womb and property rights that they may possess, depending upon who survives who under a will or, you know, that kind of thing.

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So so we never ask the right question. And and that's why we're left with this incomplete answer.

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So let me ask you this. So if Dobbs just reverses Roe as far as it this right to privacy, this imaginary right that was invented, it just says, well, that was invented.

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It's not real. So we go back to the pre -Roe consensus or status quo.

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Isn't it? Wouldn't it be the case that abortion was that was a federal issue or not federal, but an issue for federalism?

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In other words, the states were able before Roe to regulate abortion.

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Right. There was never a time in our history that you can correct me if I'm wrong here.

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That's why I'm bouncing it off of you, that it was illegal on a national level to perform an abortion, that this was always more of a state thing.

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Am I correct in that? You're right. As we all know, you know, at least we know it in an abstract sense.

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The federal government is one of only delegated powers. So if the only power was to make toothpaste, that's all they could do.

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Right. OK, if they could make mouthwash, then they could make toothpaste and mouthwash. There's no power to regulate what we would have called common law crimes.

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Or marriage or the family or medical practices. I mean, throughout our history, all of those things have really been handled.

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At the state level, there are aspects of what we would call the common law. The federal government is not a common law jurisdiction, meaning sort of comprehensive within the concept of the basic laws of domestic life and relations like doctor patient relationships and crime, stealing, embezzlement, theft of property, murder, husband, wife, marriage.

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Those were not given to the federal government. And so you never had any federal laws on those subjects because they were all left to the states.

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What the Supreme Court did first in in row is they said, well, there are all these provisions that protect people's rights of privacy, like against search and seizure, not incriminating yourself.

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And somewhere floating around that like moonbeams is this right of privacy to decide whether you want to be a mother or not.

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And so we have to leave that alone. And if she wants to kill her, maybe she can. Now, in 1992, they said, that's really stupid because there isn't any word like privacy in the

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Constitution. And this could just morph into anything. You know what?

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Privacy to do what? Own a slave? You know, I promise, you know, I'm going to own John Harris, but not taking off my property.

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You know, so isn't that right? No, can't do that. So they said in 1992, well, it's actually the word liberty.

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In the due process clause, and we get to interpret that word to define what liberty is.

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And so part of liberty is your ability to decide whether you want to be a mother or not be a mother, have the baby or not have the baby and you can kill your baby.

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Well, that had nothing to do with the word liberty as it was codified in the

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Constitution and understood at the time the

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Constitution was adopted because that due process is in the Fifth Amendment. Or in the 1888, 87, when the

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Bill of Rights was adopted, a common law, liberty meant the right of locomotion to move one's place from one place to another without imprisonment or restraint, absent due process of law.

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So that's why we have laws against kidnapping. You know, John Harris can't throw me in his trunk and take me off to Memphis or something, right?

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That's a private restraint, but it's without course of law. You were never deputized.

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You were never made a sheriff. You were never made to enforce laws on those things. Of course, a jailer can restrain you if they can prove through due process, jury trial, witnesses confronting your witness having a right to a lawyer.

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They can prove you broke a law, you were trespassing on John Harris's property, so now you can go to jail for 30 days.

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That was what liberty was. And the Supreme Court started making up new understandings of liberty that had nothing to do with anything that our framers understood.

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So they just started rewriting the Constitution. Right. So I guess the question is, if you had an objection from a pro -abortion advocate who's saying, well, look, and I don't know that a pro -abortion advocate would say this, actually, now that I think of it, because they want abortion as the right to privacy re -enshrined and including the right to kill your baby.

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But if they were to say, though, you know, this is this has always been the history of this is it's always been a federal issue.

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Different states have regulated it at different times. So, yeah, if you were going to push for a decision or even just a

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Congress to come together and make a national right to life law or something, then that's that's against all our traditions.

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Right. And that's what I'm getting at is is is is wanting a more aggressive decision.

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Is that contrary to maybe what the founders envisioned or the history that that we've in this country?

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Yeah, the answer to that question would be absent the 14th

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Amendment. They would be correct. Because part of the 14th Amendment, all we had was the

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Bill of Rights. OK, the due process clause that's in the Fifth Amendment was a restriction on the federal government's powers.

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OK, it also was not the

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Bill of Rights were not enshrining rights. They were declaring rights that already existed at common law, as as Justice Thomas said, in essence, the

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Bill of Rights codified rights that already existed. They weren't putting forward any novel thing.

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But the preamble to the Bill of Rights says that its purpose is to provide further and declaratory restrictive clauses on the federal government.

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So, in other words, the federal government would have had no business making laws about abortion or COVID or whatever else it might have been.

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And the Bill of Rights wouldn't have even applied to that. OK. But when the 14th Amendment was adopted, it did change the principles of federalism in certain regards.

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One of those regards was that no state could take away life or liberty or property without due process of law.

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So, in other words, we could have said, well, John Harris is a white guy, so we're going to have to try him and have witnesses and all that to prove he, you know, actually stole some property.

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But with the black guy, you know, everybody knows he did it. That's what black people do.

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Right. So he doesn't get due process of law. And the 14th Amendment said, no, every person gets due process of law.

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There's an equal protection of the law in the sense that the law must apply to all persons. You can't exclude males or females from the law.

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You can't exclude black people from the law. OK, you can't exclude naturalized people from the law.

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So it did change those things. But here's what what it says. And the Supreme Court said this in the case of ex parte versus Virginia after the adoption of the 14th

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Amendment. The Supreme Court said the 14th Amendment did not expand the powers of the federal judicial branch.

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It expanded the powers of Congress under Section five.

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Section five says Congress shall have the power to enforce the provisions of this amendment by legislation.

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The Supreme Court went on to say in this case, again, post 14th Amendment, if it weren't for Section five, giving power of Congress of power to Congress to enforce it, it would be nothing more than moral standards that we would hope people would obey.

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So what the Supreme Court has done is, is they've rightly said, and I'm going to get to your question about expansion.

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They've rightly said, OK, no state can have a law that deprives a person of due process of law.

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So they should have held the unborn of persons. They have a right to life. Sorry, state abortion laws violate due process of law.

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Now, when the 14th Amendment is understood that way, as it would have been understood at the time,

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Congress under Section five would have the power to enforce it, to enforce the provision of the right of persons, the unborn to life.

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They wouldn't have had that power prior to the 14th Amendment. So so when they when they go back and say, well, in our history, we've never had federal abortion laws.

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I'd say, yeah, that's right. But the 14th Amendment changed the relationship between the states and the federal government because states were depriving persons of life.

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And liberty and property. And Congress now has the power to pass a law that says state abortion laws are unconstitutional or are a violation of the law.

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You can't have a state law that does that. You can't go the flip way. That's what

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Nancy Pelosi wants to do. She wants to pass under Section five a provision that says you have a liberty right to have abortion any time you want to.

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Well, my state, I hope, would sue and say, you don't have the authority to do that. Your only authority is to enforce the provisions.

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Which give a right to life to persons, which includes the unborn. So that is a long answer.

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Yeah, that's a it's a good answer. And it did did alter the relationships between the state and federal government.

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But it did not put more power in the judicial branch, which is what they've been doing, usurping power from Congress and the states.

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Well, and that's that's through the incorporation principle, right, that they've been doing that. The judiciary to taking these and maybe misapplying or misunderstanding, mistranslating, whatever the

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Bill of Rights and then finding things in those to then apply to the states.

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For instance, the Obergefell decision may be being one of those. I mean, am I correct in that? That's that's what they've been doing.

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Yeah, it's the doctrine. You mentioned the word incorporation, the the overarching doctrine, which is made up.

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It's not in the Constitution. You won't find the words. It's called substantive due process.

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That's the that's the term the court has been using often on in its history.

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It got away from it in the 1940s, 50s, I guess it was, but came back to it.

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Particularly with Roe and going forward, the concept of substantive due process has sort of two parts to it.

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One is incorporation, which is the idea that, well, I know the due process clause by its very terms says process.

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It's about a process. It's not about anything substantive. But we don't like certain kinds of laws in the states.

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So we're going to we're going to treat it as a substantive kind of process.

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And we're going to incorporate some of the restrictions on the federal government. In the

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Bill of Rights, you know, and that's what I said earlier, the Bill of Rights was restriction on the federal government, not the states at all.

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We're going to start incorporating those against the state to say now the state can't do this.

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Now the state can't do that instead of just the federal government. The second part of substantive due process is we're going to start just making up things that aren't even in the

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Bill of Rights. We're going to redefine the word liberty from locomotion to forcing a county clerk to issue you a marriage license to two people of the same sex, even though the law doesn't allow it and prohibits it.

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We're going to we're going to say that liberty now includes the right to kill your baby. That's made up stuff.

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So they're they're both made up concepts. One makes stuff up and sucks it in from the

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Bill of Rights, like the right to carry guns or the right to search and seizure and all that.

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The other one just flat makes it up, disconnected from the Bill of Rights. So does that make sense? There's sort of two.

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Right. Yeah, it does. Substantive doctrine allows the court to do to amend the

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Constitution. So so they've been that's that's the way that a lot of the terrible decisions that have been made over the last 50 years have been reasoned using this process.

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Yeah, that's but you're not saying so to do a bill, though, or a decision, let's say that would ban abortion throughout all 50 states.

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It doesn't have to rely on that kind of logic, though. It doesn't. No, no. Congress could just simply say the 14th

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Amendment says no state shall have a law. So it says it's prohibitory. OK, no state shall have a law that deprives a person of life.

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Unborn or persons abortion deprives them of life. They don't get a guardian ad litem appointed in court.

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You know, they just go to the doctor and kill them up. Can't have that law. Congress passes a law that says any state that that allows the unborn child to be killed by a doctor is unconstitutional.

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So if it is unlawful, excuse me, if the court wanted to say and that means you can't deprive someone of the ability to marry someone of the same sex or something, we would just say, well, that's just not historical.

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That's not that's just you're you're taking your own meaning and importing it into that.

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Sure. Actually, what they did in same sex marriage is they took the word liberty and said, well, people have a right to marry.

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But the word marriage, just like abortion, isn't in the Constitution. So we're going to stuff it under this made up doctrine of substantive due process and say that's part of now liberty, the right to marry.

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It flows from the right to be able to kill your own baby because we make all these intimate decisions and family decisions all by ourselves and we're autonomous little beings.

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What's really offensive about Obergefell is when you read the 14th

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Amendment, it says no state shall. It's proscriptive. It's not prescriptive.

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It doesn't say states shall have laws that. Right, right.

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Do X, Y and Z. So the Supreme Court. Here's what's so infuriating.

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The Supreme Court says you can't have a license law that's restricted to a man and a woman.

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OK, fine. You've said I can't have that law. State officials then took that along with three of the dissenting justices and said, oh, that means we must issue a license to same sex couples.

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Well, the 14th Amendment nor the court can make a state pass any law ever.

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So in essence, all of our fine Christian elected officials and fine

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Christian Republicans in every legislator and governor's office just bowed down and worshipped. Something that doesn't exist, a power of the

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Supreme Court to force a state to pass a law that they never passed.

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They just began to ignore the law they had. Except Kim Davis. Right. There is a few people that.

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Yeah. I hate to say love her heart, but she did it exactly wrong. OK. You should have said, well, if my law in Kentucky, under which

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I issue licenses and I can only issue them to a male and a female, if that law is not enforceable,

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I don't have a law to follow. I can't issue a license to anybody because I don't have any inherent right to issue licenses.

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The only power I have to issue a license comes from the legislature. You said that law is not valid, so I don't have a law.

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Because of bad legal advice, she grounded it in her religious beliefs.

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Of course, they got swept away. In other words, what I'm saying is the conscientious county clerk or probate judge or whoever issues your license should have said.

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Could have said, I hate God, I hate Christianity, I hate divisions between male and female.

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I think we're all androgynous, transgendered beings. I love gay marriage, but because there's no law authorizing me to issue a license to anybody and the legislature not pass a new one,

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I just can't do it. You see the point? It's as if the court made a law for every state and they can't.

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I want to go down this rabbit trail a little because it is connected. Back to the abortion issue, because one of the critiques that you made is that this is unstable.

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This could be overturned so easily. Do you see that happening in the relatively near future, that this could just all be reversed again?

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Part of the reason that it's unstable is that the analysis of the majority was not really rooted in the common law meaning of the words in the 14th

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Amendment. In other words, they didn't do a common law analysis of what does the word person mean at the time this was codified.

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They didn't do a common law analysis of the word liberty. I wrote a little commentary and said if they wanted to write a short opinion, liberty means the freedom to move about from one place to the other.

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Since no state law requires a woman to go to a doctor's office and no state law prohibits her from leaving a doctor's office, there's no liberty interest involved here.

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End of discussion. Roe was wrong. Reversed. Period. That was the end of the whole opinion. But because they were trying to get

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Kennedy's vote, they said we really can't talk about that. We're going to talk on the woman's terms that there's a liberty right to abortion, but given the fact that up through the time the

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Constitution was adopted and the 14th Amendment was ratified, abortion was always a crime.

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You can't have a liberty now to commit what was a crime. And that's a good statement.

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It just has nothing to do with the text of the 14th Amendment and the words liberty in person. So because they didn't root it in the text, we still are waiting to see what the text says.

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OK. Does that make sense a little bit? Yeah. So as long as the judges who are there right now are still serving in their capacity,

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I mean, this isn't going to be changed or we wouldn't think. But as soon as you just change really two or three judges, well, it might even be,

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I guess, two judges, you'd have to have at least two. Thomas is 78 and Alito is 72, 73.

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Of course, anybody can die anytime. Right. But this could all just this could go away.

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What would you think? What would you say that pro -life groups and, of course, abolition groups and that whole spectrum, what should they be doing in their states and also on a federal level to try to take the next step to fight for a national law?

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Or I don't really know exactly what the best way to approach it is because you have obviously the states and the federal jurisdictions.

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But what would you say they should do to capitalize on this and try to move into a more stable environment?

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Yeah. And let me let me address that question in the context of your earlier statement about with a couple of changes in judges, the

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Dobbs decision could be reversed. Here's what I think they'll do, though. Joe Biden said when he was looking at Katonji Brown -Jackson, we need judges who understand the

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Ninth Amendment. Judges who understand that all of our rights were not enumerated in the

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Constitution and we have other rights. The Ninth Amendment has never been interpreted by the

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Supreme Court. It's a blank slate. It's a open book for what's going to be written on the page for what it means.

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The Ninth Amendment says the enumeration of certain enumeration in the Constitution of certain rights, one through eight, shall not be construed to deny or disparage others retained by the people.

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Joe Biden and Democrats will be looking for a person to put anything they want in that word others.

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So what they'll say is, well, yes, the right to abortion isn't in the 14th Amendment.

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It's in the Ninth Amendment. Ah. And we've never construed the Ninth Amendment.

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Now, here's what's fascinating, John. Have you noted the words that have come out now called bodily integrity and bodily autonomy?

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Yes. I've seen it everywhere. Yeah. Yeah, that's right. Now, let me tell you where I believe that's coming from.

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They're very smart. What I learned in my 12 years as a Republican senator is

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Democrats think four spaces down ahead of where the

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Republicans are. They're playing. We're playing checkers while they're playing chess. You know, we can only go forward.

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They can skip two spaces and move over and do all kinds of things. And we wonder why we lose. One of the fundamental rights of common law,

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William Blackstone, Braxton, all these guys that the Supreme Court just quoted were very clear.

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One of the fundamental rights is to liberty to move around. The other is to property. You can't just come take my property,

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John. Sorry. And personal security. And we're not used to hearing that term.

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But personal security had to do with securing my person. My whole person.

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And that included my life. There's where you get that word in the 14th Amendment. My body, my limbs, my health, my reputation.

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That's why we have laws against slander and defamation, because you can you can say things about me that are so false that my ability to move in society, to live, you know, is restricted.

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Right. You know, it's the cancel culture. So because body and limbs and health are a part of personal security, which is a fundamental right.

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I think what they're going to do is to say, oh, see, they're going to pervert the common law. But they're going to say the

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Ninth Amendment says we have other rights and that is to my body. So you have to let me have an abortion because it's guaranteed by the

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Ninth Amendment. Now. I'm not the smartest guy in the world, but if I can figure out the strategy and see it.

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You know, I'm not telling them something they don't already know. What I'm trying to do is tell the Christian community it's coming.

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Now, I've had people tell me, oh, we don't want to open that can of worms. The Ninth Amendment. Lord knows what's going to be in it.

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My point is, well, it's going to get open. The question is, who's going to open it first and define it first?

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Are you going to wait for it to be open when we've lost Clarence Thomas and Justice Alito? And we've got two more

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Katanji Jackson Browns on the court. Is that when you want to open it? No, do it now.

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How do you do it? This goes to the next question. I think what states should be doing, particularly

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Kentucky and Florida and Missouri, I think it is wherever their state law is being challenged.

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They need to say. We are doing exactly what the ninth and the 14th

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Amendment require. Because the common law right to personal security is the right of every person.

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Born and unborn to their life. The Ninth Amendment acknowledges we have other rights, and that's one of them.

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The 14th Amendment protects life by saying you can't take it without due process of law.

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And so we're bringing our law into conformity with the ninth and 14th

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Amendments. The Supremacy Clause applies, and therefore our state must pass laws that prohibit abortion.

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Once you make that argument and the Supreme Court says, yes, you have the authority to do that. You've now forced on the court who constitutes a person because your state has said, well, it common law persons included the child in the mother's womb.

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It's very clear, black and white. You just quoted to me in the Dobbs opinion, Justice Alito, or cited to William Blackstone 12 times.

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So I'm going to sign him back to you. The child and been through the same year in the mother's womb is a person for many purposes under the law.

35:14

And that's why we had criminal laws. And you know it. Their right to life is protected.

35:20

And because that 14th Amendment applies and it trumps state law, states can't have laws that deprive persons of life.

35:30

Period. End of discussion. And that's what states should be doing. They don't need to be arguing over their state constitution.

35:38

Why? Because the Supremacy Clause says the 14th

35:43

Amendment trumps your state constitution. If your state thinks your state constitution gives a right to abortion, then it violates the 14th

35:52

Amendment. And that provision, that interpretation of your constitution, your state constitution is unconstitutional by virtue of the

36:00

Supremacy Clause in Article 6. That's what states need to be doing. That's interesting.

36:05

I hadn't heard that line of attack, but that makes perfect sense that they'll go that route.

36:10

And so states can be doing that on a federal level or national level.

36:17

Obviously, there isn't a majority there. Once there is one, though, then I mean, is it just push for a national right to life law of some kind and get it through?

36:27

Yeah. I mean, as I said, Congress has the power under the Section 5 of the 14th Amendment to enforce its provisions.

36:34

But you and I both know that, at least for the next two years, in any way, that's going to pass.

36:40

No, I know. It's going to pass Congress, and two, Biden would veto it, and they'd never override it. But look, Republicans could have done that when they had the presidency in both the

36:48

House and the Senate, and they didn't. And they didn't, yeah. So I wouldn't wait on Congress to ever do anything that's important.

36:56

I don't care what it is. They're too dysfunctional. And if they did do something important, it's because they bribed off somebody with something stupid to vote for that.

37:06

Well, OK, you know, I'll fix your baby formula shortage, but you have to let more immigrants come across the border.

37:12

Right. That's how they play. But here's the beautiful thing about what I just suggested.

37:17

If you make the argument in your state, if your attorney general will defend your abortion law on the grounds of the 9th, 10th, and 14th

37:26

Amendments, if the state Supreme Court ignores that argument, and if they hold that the state constitution secures a right to abortion, because you've defended your law on a federal constitutional ground, the state attorney general would have the right to appeal directly to the

37:47

United States Supreme Court, because it's a federal question. And then the federal judge is stuck.

37:55

The Supreme Court is stuck with this question because it's what you asked. Are the unborn persons?

38:00

Do they have a right to life? If so, the 14th Amendment says, I can't let them just be killed willy nilly.

38:06

What are you going to say, Supreme Court? Yeah. Now we've finally asked the

38:12

Supreme Court the question that for 50 years we've never asked. Never asked them. Yeah. Yeah. And that's that's interesting that that hasn't been one of the

38:22

I'm sure that that was an open question or at least an option that they knew it was available. But that's not the route they went for some reason.

38:30

So, you know, and I don't I don't know why. Other than what happens is,

38:36

John, and we're all guilty of this. We we engage in the conversation. On the terms given to us.

38:45

And we don't ever stop and say, wait a minute, why am I arguing on your terms about liberty?

38:51

You need to argue on my terms. Just forget that. Wait a minute.

38:57

There's there's something that precedes this argument because we're so fixated on saying you don't have this right. You don't have this right.

39:02

You don't have this right. We don't ever stop and think about the right of the child. And here's how

39:09

I've analogized it. My wife and I dated for five years and jokingly say we we got divorced twice before we got married.

39:16

We kind of got him. But but anyway, there were lots of reasons.

39:22

You know, I didn't want to get married quite so soon. And then I wanted to go to law school. And so, you know, it just went back and forth for a little while.

39:30

But but, you know, she could have said to me after a year, David, do you love me?

39:36

Oh, Linda, I love you. I love you. Next year, she says. You think you want to spend your life with me?

39:43

Well, sure, sweetie, I will spend my life with you. Next year, she says, my most important woman to you in the whole world.

39:49

Oh, absolutely, sweetie. And after four years, she says, well, are you going to marry me? Well, no.

39:57

And she'd say, well, you said you love me. You said you want to spend your life with me. You said you love me more than anyone.

40:03

I said, it's true. I just don't want to marry you. But you didn't ask me that question, sweetie. You see?

40:12

So when you go to the Supreme Court. You have to make sure that you've written the law or made the argument such that the question you want answered.

40:23

Is the only question in front of. Otherwise, they'll beat around the bush and give another question.

40:31

So see, Mississippi said. Does a woman really have a liberty right to kill a baby?

40:38

After 15 weeks, the court said, no, she doesn't.

40:44

That's great. They didn't say. We think the child has a right to live.

40:51

But we really don't care for the first 15 weeks. It does or not. I mean, who's going to make that argument, right?

40:59

See what Mississippi. What, in fact, we were advised not to do. And I know because I'm pro -life and I was in the legislature and I hadn't thought through some of these things.

41:10

I assumed the people representing the pro -life community were making the best arguments they could.

41:19

And they were afraid to make the argument that I'm making for fear they would not find five votes.

41:26

Now, they may have been correct. Because I believe in the providence of God.

41:31

I'm not going to sit here and and say God screwed up for the last 50 years.

41:38

But what they were really doing, see, is they weren't arguing legal principles. They were playing judicial politics.

41:46

Can you count to five? And if we're going to play judicial politics, then we should expect to get judicial politics.

41:58

And what I was saying is and what I'm now saying is we should have been making a legal argument grounded in the common law using

42:06

William Blackstone. And in fact. The way they treated the understanding of the practice of abortion vindicates what

42:17

I've been saying. The common law is so important. You don't understand the common law. You don't understand the

42:22

Constitution. You can just make it up any way you want to. And that's what they've been doing for 50 years.

42:29

So another good part is. The Supreme Court acknowledged common law and its importance in Dobbs.

42:36

It was fundamental to the Second Amendment's case. And so any conservative and any

42:42

Christian who wants to win in the Supreme Court better get back to making arguments grounded in the common law.

42:48

And the common law was sane. And in fact, it said that Christianity was the cradle of the common law.

42:55

Its moral values align with the Christian moral values. And it's like we forgot the law that was in the temple that Josiah said,

43:04

Oh, my goodness. Oh, my goodness. Look at this. We've got this law. What am I going to do? The Supreme Court has said, hey, don't forget the common law.

43:12

It's right here. We would be foolish then to not use it. So, yeah, well, that's helpful stuff.

43:20

And I think probably people listening are having thoughts that they didn't have before about this.

43:28

And so I think it's been beneficial. And I really appreciate it, David, for taking your time. I know you're probably a busy guy with everything you're doing.

43:35

But if people want to go find out more, they go to FACTennessee .org or check out your podcast,

43:41

God, Law and Liberty. Is that what iTunes, YouTube? Where do you host? Yeah. And it's also on the

43:46

Fight Left Feast Network. Okay. Anybody heard of it? I have. Yeah. Yeah. It's a good go to the

43:52

Fight Left Feast app and check it out if you have that. And so, yeah, any any any final thoughts that you want to share?

43:58

No, but, you know, people don't know what the common law is or want to learn. You know,

44:05

I encourage them, you know, contact us. I could send them some stuff that they could read. For example, they emailed us at info at F -A -C -T -N, the abbreviation for Tennessee.

44:16

The website's spelled out. Email's T -N dot org. We can get them some information to help them better understand the common law because it is really important.