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Elites and Courts Push American Into a Post-Christian Era (Forbes.com) July 29, 2015

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“My country ‘tis of Thee, sweet land of Secularity” will be our new national hymn as America enters the uncharted territory of a post-Christian era.  Long known as “a Christian nation,” the U.S. has turned sharply in a secular direction, thanks to the trickle-down influence of elites and handed-down dictates from courts.  This historic shift will affect everything from elections to education to ethics and beyond.

How can a nation be Christian (or post-Christian) in the first place?  America has never been a theocracy, following the direct rule of God in the manner of the Islamic Republic of Iran or the Vatican (or Israel in Old Testament times).  Rather America has been referred to as a Christian nation because of the core beliefs and world view of a majority of its people and an acknowledgement of God by its public leaders and symbols.  But as Americans, especially the young, move away from faith in large numbers, and courts systematically dismantle religious symbols and influences, the post-Christian era has arrived.

Recent polls confirm the increasing secularization of our people, especially the young.  A poll by the Pew Foundation shows that the number of Americans describing themselves as Christian has declined by about 10% between 2007-2014.  Meanwhile, those professing no religion grew by 50% in that same time frame.  Fewer than 6 in 10 millennials (ages 18-33) affiliate with any branch of Christianity.  A recent survey by the Public Religion Research Institute shows that 66% of those age 65 and over believe being Christian is an important part of being American, while only 35% of those ages18-29 agree.  These numbers are changing remarkably quickly as Americans are seemingly losing their faith and becoming more like secular Europeans.

Another lens into post-Christian America is the declining impact of traditional Christian teaching on social mores.  The sexual revolution continues to redefine the nature of sex, relationships and the family away from orthodox Christian teaching.  Young people increasingly see science as a challenge to the teachings of the Bible.  The rise of tolerance as the ultimate value in society sometimes clashes with religious notions of absolute truth.  In short, a new and more liberal orthodoxy is tipping the scales of public dialogue and conventional wisdom away from the narrower views of traditional religion.

Finally, the courts have begun to chip away at religious influence and symbolism in the public square.  I mean, when the Oklahoma Supreme Court votes 7-2 that a monument of the Ten Commandments must be removed from the state Capitol, as it did recently, you know times are changing.  It probably will not be long before “one nation under God” in the pledge and “in God we trust” on the currency will be ruled unconstitutional by courts.  Of greater significance was the Obergefell v. Hodges decision about same sex marriage, in which the traditional Christian understanding of marriage received so little attention and support that the justices could only uphold Christians “teaching” and “advocating” their views, rather than quoting the more muscular language of the First Amendment about “free exercise.”  In his dissenting opinion, Justice Samuel Alito warned that the court’s opinion “will be used to vilify Americans who are unwilling to assent to the new orthodoxy.”

In one sense, Christians need not despair.  Christianity has survived governments and societies of all kinds throughout the ages.  But the losers in this may be less the Christians than the larger society.  The Founders consistently warned that in order for a free republic to work, a virtuous people would be needed, and the source of that virtue, in their experience, was religion.  So the question we must answer in post-Christian America is this:  What will be the sources of our virtues and values?  My own uneasiness about this was reflected on a bumper sticker I saw on a Los Angeles freeway:  “THERE IS NO HOPE (but I could be wrong).”

Link to column at Forbes.com:

http://www.forbes.com/sites/daviddavenport/2015/07/29/elites-and-courts-push-america-into-a-post-christian-era/

America Enters the Post-Christian Era (National Radio Commentary, Salem/Townhall) July 22, 2015

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This is David Davenport of the Hoover Institution for Townhall.com.

Although it has been building for a while—with polls showing fewer people believe in God or attend church—mark Justice Anthony Kennedy’s Supreme Court decision about same-sex marriage as the beginning of the post-Christian era in America.

The decision was an amazing turn against the core beliefs and practices of conservative Christianity and other religions. The currency may still say “in God we trust” but that means only when we agree with God or when God keeps up with the times.

A new liberal post-Christian orthodoxy is sweeping the country, and sweeping out the historical notion of America as a Christian nation.

This will challenge churches, whose ancient beliefs in absolute truth will at least challenge their tax exemptions and may be considered hate speech.  Religious schools and hospitals will be at risk.  Religious people who feel obligated to follow their faith as bakers or florists or artists of various kinds will face impossible choices.

Welcome, America, to the post-Christian era.

I’m David Davenport.

(Suggested Air Date: 7-22-2014)

Link to audio at Townhall.com:  http://townhallreview.com/2015/07/davenport-america-enters-post-christian-era-7-22-15/

California Raisins and the New Deal (National Radio Commentary on Salem/Townhall) July 21, 2015

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Home / Blog / Davenport: California Raisins and the New Deal 7-15-15

Davenport: California Raisins and the New Deal 7-15-15

For those discouraged over other late-term Supreme Court decisions, you might have missed one they got right.  The Court held that taking a farmer’s raisins as part of a New Deal-era price support and subsidy program was a “taking” under the 5thamendment of the Constitution and had to be compensated.

Although the Department of Agriculture is studying the matter, this could be a blow to other antiquated farm subsidies from the 1930s.  And it is a strike against the New Deal policies themselves which, unbelievably, are still on the books.

This is the problem with grand government programs to deal with emergencies—the laws don’t end when the crisis is over. Other New Deal era gifts that keep on giving today include the president’s aggressive use of executive orders, the growing federal deficit and Social Security.

The Great Society gave us Medicare. And today, of course, we have Obamacare. Eighty years later, we’re still fighting big government solutions dating back to the New Deal.

The Supreme Court’s Newly Invented Right to Equal Dignity and the Problems It Will Cause (Forbes.com) July 8, 2015

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In case you missed it, Justice Kennedy and the majority of the Supreme Court invented a new constitutional right when they overruled bans on same sex marriage.  In the closing line of the opinion, the Court said that those seeking the right to gay marriage “ask for equal dignity in the eyes of law.  The Constitution grants them that right.”

Read the Constitution front to back and tell me where you find the section about the “right to equal dignity.”  Sorry, but like a lot of things people mistakenly assume must be in the Bible or in the Constitution, it’s not there.

What is in the Constitution is the 14th Amendment, on which the Court said this decision was based.  It promises that no “state [shall] deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”  Even there, Kennedy’s decision is awkward and unclear, claiming to base its decision on a deprivation of liberty, namely the fundamental right to marry the person you want.  Equal protection seems the less strained basis.

But then Kennedy, writing for the majority, waxes eloquent about equal dignity, as he has done in the past.  It’s in many of his Supreme Court opinions, from the Casey abortion case to the Lawrence sodomy decision to his opinion in the Windsor Federal Defense of Marriage Act case.   So some kind of dignity right is in Kennedy’s mind and jurisprudence; the problem is that it is not in the Constitution.  And it is so broad and vague it shouldn’t be.

One unanswered question is what equal dignity, or even dignity itself, might mean under the law.  None of the cases attempts to answer that question.  Webster’s Dictionary says dignity is the “quality or state of being worthy, honored or esteemed.”  The Oxford Dictionary adds the term “respect.”  Does this mean, then, that when people in our litigious society feel disrespected, their constitutional rights are violated?  Or, with some limitation, if government is somehow involved in that disrespect, there is a legal cause of action?  In some countries and cultures, even jokes have prompted arrests and prosecution on similar grounds.  Will the First Amendment protection of free speech still win out over this new “constitutional right?”

Less speculative is the looming clash between First Amendment free exercise of religion protections and this new right to equal dignity under the law.  Although many religions, including conservative Christianity, do not accept gay marriage, the Supreme Court’s opinion gave scant attention to their concerns.  Justice Kennedy said they may “continue to advocate” their view and “teach the principles…they have long revered.”  But wait, isn’t the First Amendment stronger than that?  Doesn’t it protect free exercise of religion, not just advocacy and teaching?  If a Christian or Muslim school or agency does not deal with same sex couples and their families in the same way as heterosexual couples, does that not violate Kennedy’s principle of “equal dignity?”  But at the same time, is that not protected by the free exercise of religion clause in the First Amendment.?  Or how about the bakers or florists or artists who feel they must exercise their religious beliefs and decline to participate in gay marriages?

Equal dignity looks like Pandora’s Box to me.  It is not in the Constitution and is ill-defined, vague and uncertain.  No one really knows what it means in a legal context.  It is overly broad—there is indignity everywhere in a crowded and busy world.  And it has now been attached to a new practice, same-sex marriage, that clashes and jars against other rights, most notably free speech and the free exercise of religion, also guaranteed by our Constitution.

Equal dignity under the law—coming soon to a courthouse near you.

See article at Forbes.com:  http://www.forbes.com/sites/daviddavenport/2015/07/08/the-supreme-courts-newly-invented-right-to-equal-dignity-and-the-problems-it-will-cause/

Roberts Moves from Umpiring to Batting on Healthcare–National Radio Commentary, Salem-Townhall July 6, 2015

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Roberts Moves from Umpiring to Batting on Healthcare

This is David Davenport of the Hoover Institution for Townhall.com.

Somewhere we have lost Chief Justice Roberts.  I mean the Roberts who told the Senate Committee in his confirmation hearing that his judicial philosophy was to be an umpire calling balls and strikes, not a batter or pitcher.

But twice now Roberts has rewritten the Affordable Care Act in order to save it. First he changed the law from an unconstitutional penalty to a constitutional tax. Now he’s ruled that “state exchange” is ambiguous and includes a federal exchange, rescuing it again.

Roberts apparently feels the need to step in the batter’s box and engage in judicial activism in order to protect the Court from having to invalidate Obamacare and be accused of, yes, judicial activism.

And so Chief Justice Roberts joins Harry Blackman, David Souter and Anthony Kennedy in the hit parade of supposed conservative justices who took big turns to the left once seated on the Court.

I’m David Davenport.

(Air Date: 7-6-2015)

Link to Salem/Townhall Audio:

http://townhallreview.com/2015/07/davenport-roberts-moves-umpiring-batting-healthcare-7-6-15/

Why Has Chief Justice Roberts Moved From Umpiring To Batting On Healthcare? (Forbes.com) June 26, 2015

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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Could someone please remind Chief Justice John Roberts of his opening statement to the Senate Judiciary Committee in his confirmation hearings in 2005?  That’s when he described his all-important judicial philosophy by saying:  “Judges are like umpires.  Umpires don’t make the rules; they apply them…I will remember that it’s my job to call balls and strikes and not to pitch or bat.”  I ask because his majority opinion in the King v. Burwell case this week is the second time he has rewritten the Affordable Care Act (ACA) in order to save it, moving out of the umpire’s stance directly into the batter’s box.

In King v. Burwell, the Court needed to decide whether the phrase “an Exchange established by the State” meant just state or could include federal exchanges.  Justice Roberts, writing for a 6-3 majority of the Court, found the language was ambiguous, which permitted the Court to look more widely at the purpose of the law and decide its purposes would not be accomplished if state didn’t also mean federal.  In his sharp dissent, Justice Scalia said, “Words no longer have meaning if an Exchange that is not established by a State is “established by the State.”

The general view around Congress had been that the language had simply been a mistake.  Indeed, the Court acknowledged that the ACA “contains more than a few examples of inartful drafting.”  The Court cited a few reasons for this, including debates behind closed doors and the use of a “reconciliation” legislative procedure that limited debate and amendments.  I could add a couple more:  passing a huge overhaul of a major system like healthcare without sufficient care (Nancy Pelosi’s famous, “but we have to pass the bill to find out what’s in it”) and slamming it through on a straight party line vote.  As the old car repair commercial used to say, you can pay me now (preventive maintenance, getting it right) or you can pay me later (repairs) and this law has been paying later.

But Roberts apparently does not want the ACA to pay too much for its repairs by returning it to Congress to get it right.  So twice now, he has essentially rewritten the bill to fix it himself.  In the first case, the Court having found that Congress lacked power to pass the ACA under its commerce clause power, Roberts reinvented its basis as a bill valid under the taxing power.  This time, he reinvented State Exchange (capital letters) to mean state and federal.

It is not the role of the Court to fix another branch’s mistakes.  So why is Roberts willing to do this?  I believe it is a misguided calculation that he has to engage in a little judicial activism in repairing the law in order to avoid a perception of even greater judicial activism by invalidating the law.  He seems to be so concerned about lowering the volume on controversial Supreme Court decisions that he is willing to be a judicial activist in order to protect the Court’s reputation against charges of judicial activism.  It makes no sense, in the same way that the officer who said “We had to burn down this village in order to save it” made no sense in Vietnam.

John Roberts turns out to be another disappointing judicial appointment for conservatives, moving strike zones, saying words have no obvious meaning, and rewriting the law to fix Congressional errors.

Link to Forbes.com:  http://www.forbes.com/sites/daviddavenport/2015/06/25/why-has-chief-justice-roberts-moved-from-umpiring-to-batting-on-healthcare/

The Supreme Court Removes One Raisin Of The Smothering New Deal Legacy (Forbes.com) June 23, 2015

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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According to conventional U.S. history texts, Franklin Roosevelt’s New Deal ended sometime in the late 1930’s.  Unfortunately, that is one more urban myth that needs to be exposed on Snopes.com. To our detriment, the New Deal is alive and well, still serving as the basic framework for U.S. domestic and economic policy.  Indeed, Time magazine was prescient when it featured a cover shortly after Barack Obama was first elected in November, 2008, showing the new president with Roosevelt’s top hat and long cigarette holder, proclaiming “A New New Deal,” since Obama has continued to exercise the powers and extend the policies of the New Deal.

Finally the U.S. Supreme Court struck a blow against the antiquated New Deal agriculture policies this week, declaring on an 8-1 vote that the Raisin Administrative Committee, overseen by the U.S. Department of Agriculture, took a farmer’s raisins in violation of the 5th Amendment “takings” clause of the Constitution.  Still, 80 years after the Depression, the government exercises the power to take crops from farmers in order to keep supplies down and prices up.  So Fresno, California, farmer Marvin Horne must be paid in full for the crop that was taken from him as part of the government price support program.  That’s one small raisin for farmer Horne, one big bag of raisins for rolling back the New Deal.

Unfortunately it is not clear how widely this may affect other agricultural subsidies since they do not all involve “taking” the crop.  The USDA said it would review the Supreme Court ruling and “provide guidance based on the decision in the near future.”  Even dissenting justice Sonia Sotomayor admitted that the raisin regulations may be “outdated and by some lights downright silly.”  But this is the legal legacy we live with when emergency laws and regulations from a worldwide depression are not removed or even reviewed when the emergency is over.

Another such relic of the New Deal may be removed later this month when authority for the Export-Import Bank expires.  It, too, was established by Executive Order of President Roosevelt to facilitate loans with the Soviet Union.  Now it appears to be one more measure still on the books long after its purpose has vanished.  Although its proponents argue it helps small businesses compete abroad, Boeing (not exactly a small business) received most of its money last year.  Amazingly Hillary Clinton still wants to put up a fight for it, saying she wants an Export-Import Bank “on steroids.”  Alas, the New Deal legacy will be part of campaign 2016.

Believe me, there is plenty more from the New Deal that needs to be reexamined.  It was during that period that executive power began to grow dramatically, with Roosevelt saying the president needed war-like powers to deal with the economic emergency.  Again the courts have been somewhat helpful here, with the Supreme Court ruling that the president cannot do end-runs around the Congress with “recess appointments,” and another federal court ruling recently that he does not have the power to change the immigration laws unilaterally.  Likewise huge growth in the national debt was a gift from the New Deal that keeps on giving today.

It was also during the New Deal that the commerce and spending powers of the government under the Constitution grew dramatically.  Again the Supreme Court has taken a little wind out of those sails, declaring that Obamacare was not justified under the Commerce Clause, even while upholding it under the taxing power, and also warning that Medicaid regulations bordered on an unconstitutional stretch of the spending clause.  Of course Obamacare itself is a major addition to the New Deal legacy of Social Security.

President Obama recently made news when he said in an interview that “racism casts a long shadow and is still part of our DNA that’s passed on.”  Unfortunately the same thing could be said about the New Deal—kudos to the Supreme Court for at least trimming its sails a bit.

Link to Forbes.com:  http://www.forbes.com/sites/daviddavenport/2015/06/23/the-supreme-court-removes-one-raisin-of-the-smothering-new-deal-legacy/

Must God Modernize? (National Radio Commentary / Salem-Townhall.com) June 17, 2015

Posted by daviddavenport in Op/Eds, Radio Commentaries.
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Amid the heated rhetoric about gay marriage comes the absurd and dangerous claim that God needs to change with the times.  New York Times columnist Frank Bruni wrote that Christians should rightly bow to “the enlightenments of modernity.”  Speaking of reproductive rights, Hillary Clinton said deep-seated religious beliefs “have to be changed.” 

Nothing is more at odds with the First Amendment than arguing that God has to bow to modernity. The First Amendment affirms the free exercise of religion, whether ancient or modern.

Legal scholar Richard Epstein points out that “the law is a blunt instrument that lurches first too far in one direction and then too far in the other.”  Unfortunately that’s happening with some advocates of gay marriage, pressing for a larger legal change than necessary.  There is room to accommodate same-sex marriage and its legal benefits without making Christians limit their free exercise of religion.  

This new liberal orthodoxy—that can tolerate no dissent (even from God)—poses a real danger to religious freedom.

Link to Salem-Townhall.com audio:  http://townhallreview.com/2015/06/davenport-must-god-modernize-6-18-15/

Rugged Individualism Is Exactly The Wrong Case for Obamacare (Forbes.com) June 15, 2015

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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President Obama has been heating up the rhetoric about Obamacare as the Supreme Court prepares to announce its decision on whether the whole program might collapse over illegal subsidies.   In a press conference, he meddled in the work of the judicial branch, saying the Court should never have taken the case in the first place.  The next day, he summoned up American rugged individualism in its defense, saying:  “The rugged individualism that defines America has always been bound by a set of shared values; an enduring sense that we are in this together. That America is not a place where we simply ignore the poor or turn away from the sick. It’s a place sustained by the idea that I am my brother’s keeper and I am my sister’s keeper.” I’m sorry, Mr. President, but America’s rugged individual—bounded or not– is the last place to look for defense of federalizing healthcare.

The idea of the rugged individual was captured in historian Frederick Jackson Turner’s “frontier thesis,” explaining how the American character had been developed battling the elements and conquering the territory of the American West.  The first use of the actual expression “rugged individualism” was by Herbert Hoover in his campaign for president in 1928, explaining why the great concentration of federal power built up during World War I should be returned to the people in peacetime.  He contrasted the American system of self-reliance and “rugged individualism” with the European systems of paternalism and socialism.

Yes, it is true that American rugged individualism is often accompanied, even limited, by something else.  But that something else is not federal mandates such as Obamacare.  Perhaps what Obama was aiming for, but missed, was what the French journalist and philosopher Alexis De Tocqueville observed when he visited America, noting that Americans were forever associating and helping one another, whether through churches or civic associations of every shape and form.  Even life on the American frontier involved a lot of collaboration, along with individualism.  But these were voluntary community efforts, a kind of public virtue, not statism.  Efforts by the state—such as Obamacare—are precisely the opposite of individualism.

Beginning with Progressivism and the New Deal, the modern welfare state became the alternative to rugged individualism, and Franklin Roosevelt’s “forgotten man” began to replace the “rugged individual” as the object of federal policy.   The two should ideally live alongside one another, if Washington leaders would allow room for both.  So, for example, even among the excesses of Lyndon Johnson’s Great Society, there would nevertheless be space for individual and corporate health care policies for rugged individuals, and then the safety net of Medicare created for the forgotten man.

But, alas, Obamacare neither sought nor found a balance between the rugged individual and the forgotten man.  It turned out that if you liked your policy, you probably could not keep it, Mr. Rugged Individual, as millions of policies became “illegal” because they did not cover everything Obamacare insisted upon.  Of course it’s hard to find balance when you ram through a massive overhaul of the health care system on a party-line vote, without a single member of the “other” party voting in favor.  So rather than creating two systems—one a rugged individual’s personal or workplace policy and the other a safety net for the forgotten man—Obamacare created one, large system, essentially federalizing healthcare.   This is not rugged individualism bounded by public virtue—this is a federal takeover, pure and simple.

While there is widespread agreement that individualism is part of the unique character of Americans, policymakers in Washington have been steadily killing it since the New Deal.  It would help if the President understood rugged individualism and then allowed it a place at the policy table, rather than continuing to suppress it in the quest to federalize everything from education to healthcare and the environment.

Link to Forbes.com:  http://www.forbes.com/sites/daviddavenport/2015/06/15/rugged-individualism-is-exactly-the-wrong-case-for-obamacare/

Supreme Court Decision Time (National Radio Commentary / Salem-Townhall.com June 9, 2015

Posted by daviddavenport in Op/Eds, Radio Commentaries.
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June is bustin’ out all over, the song says, and it will soon bust out at the U.S. Supreme Court. June is the month when many of the Court’s decisions in cases heard over the last 9 months will be announced.

Obamacare has been in court since the day it was signed into law, which happens when a massive overhaul to a major system has very little debate or attention to detail.  Drafters recently claimed that the issue in Court now was a mistake.  But it’s not the Supreme Court’s job to fix Congressional mistakes, so the Court should decide that Obamacare subsidies are not valid in states that do not have their own exchanges, as the law states, and send it back to Congress and the states.

Same-sex marriage is being addressed just fine in the states and lower courts.  There is really no need for a major Supreme Court declaration about it, and a conservative court should say so.

Either way; Supreme Court decision time is here.

Link to Salem-Townhall audio:  http://townhallreview.com/2015/06/davenport-supreme-court-decision-time-6-9-15/

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