Land transfer would be a process, not a grab — Sutherland Soapbox, 12/9/14

Flying_birds_at_Sacramento_National_Wildlife_RefugeThis post is a transcript of a 4-minute weekly radio commentary aired on several Utah radio stations. The podcast can be found at the bottom of this post.

You’ve probably heard by now that the Utah Public Lands Policy Coordinating Office came out with a report last week detailing the potential impacts of transferring about half of all federal lands here to state control.

This is an issue because people all over the West are feeling the pain of being cut off from the land they love — and need — whether to make a living or recreate … and just to live a happy and fulfilling life.

And the truth is, the only one cutting off access to public lands right now is the federal government. Unless you’re young, wealthy, and healthy enough to get the gear and time to trek in, you’re seeing your access reduced by either regulatory and legal hurdles, or actual chains being put up across roads and trails.

These policies are being forced on us by people in far off Washington, D.C., who know nothing of the rural production economy … what it makes, how it runs … or the families who choose to live and work in it.

These D.C. landlords serve a different master and have different priorities. They’re an interest group as powerful as any in the nation, but funded by you. And their interests don’t match those of the people who live and work on the lands they manage.

The Utah report weighs in at around 800 pages, so I can’t even do a fair job of summarizing it in the four minutes I’ve got here. But its conclusion – arrived at by economists and scientists from three Utah universities – is that, yes, Utah can manage those lands in an economical and balanced way without sacrificing the beauty of the state, its quality of life, or its attraction to tourists and recreationists from around the world. And it can even turn (trigger alert, I’m going to use a word that some in the environmental activist community might find offensive and cause the vapors) [Utah can turn] a profit to help pay for other state needs in the process.

Cue the hue and cry from the for-profit environmental movement. The Southern Utah Wilderness Alliance and Center for Western Priorities, apparently after reading their own press releases instead of the actual study, immediately responded with boilerplate talking points and cherry-picked data respectively in their attempts to discredit the report.  Continue reading

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On Point video: Holly Mullen on rape culture, 12/5/14

In this episode of On Point, Holly Mullen, executive director of the Rape Recovery Center, discusses rape culture with “Holly on the Hill” blogger Holly Richardson and Michelle Mumford, former assistant dean at BYU Law School.

You can watch all the half-hour On Point videos here on Sutherland’s YouTube channel.

Use this link to subscribe to the On Point podcast on iTunes.

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As war begins: a vivid glimpse of Pearl Harbor in 1941


For seven ghastly, confused days, we have been at war. To the women of Hawaii, it has meant a total disruption of home life, a sudden acclimation to blackout nights, terrifying rumors, fear of the unknown as planes drone overhead and lorries shriek through the streets.

The seven days may stretch to seven years, and the women of Hawaii will have to accept a new routine of living. It is time, now, after the initial confusion and terror have subsided, to sum up the events of the past week, to make plans for the future.

It would be well, perhaps, to review the events of the past seven days and not minimize the horror, to better prepare for what may come again.

The words above were written by a reporter for the Honolulu Star-Bulletin, Elizabeth P. McIntosh, a week after the Dec. 7, 1941, attack on Pearl Harbor. She explained, “After a week of war, I wrote a story directed at Hawaii’s women; I thought it would be useful for them to know what I had seen.”

But her editors pulled the story, fearing it was too graphic. It was finally published 71 years later, in 2012, in The Washington Post.

Two weeks ago, I was at Pearl Harbor, thinking about the Japanese attack and its consequences. It’s tempting to view World War II now with a sort of nostalgia, since we know how it all ended, with the Allies finally triumphant. But looking at the harbor, I tried to imagine what it was like at the time, when it was reality and not history, and McIntosh’s story gives me a glimpse of that.

To 21st-century eyes, her account is hardly graphic. But it is immediate and terrifying, conveying a vivid sense of “what’s next?” and the rumors that must have flown from person to person.

Read it here (includes video) at The Washington Post.

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A triptych for today …

Library… reflecting on George Santayana’s sobering reminder: “Those who cannot remember the past are condemned to repeat it.” (The Life of Reason: the Phases of Human Progress, Vol. 1, p. 284, 1905-06)

  • “…the way to have good and safe government is not to trust it all to one, but to divide it among the many…. What has destroyed liberty and the rights of man in every government which has ever existed under the sun? The generalizing and concentrating all cares and power into one body.”

– Thomas Jefferson, February 2, 1816, in a letter to Joseph C. Cabell (The Writings of Thomas Jefferson, edited by Andrew A. Lipscomb and Albert Ellery Bergh, Vol. 14, pp. 421-423. Washington, DC: Thomas Jefferson Memorial Association, 1905)

  • “An elective despotism was not the government we fought for; but one in which the powers of government should be so divided and balanced among the several bodies of magistracy as that no one could transcend their legal limits without being effectually checked and restrained by the others.” 

 – James Madison (“Federalist No. 58,” The Federalist Papers, February 20, 1788)

  • “The American Republic will endure, until politicians realize they can bribe the people with their own money.” 

– Attributed to Alexis de Tocqueville (1805-1859), French political observer and historian. A champion of liberty and democracy, his most famous works are Democracy in America (two volumes, 1835 and 1840) and The Old Regime and the Revolution (1856).

Or, as Mark Twain is reputed to have put a bow on it: “The past does not repeat itself, but it rhymes.”

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The Power of One — Sutherland Soapbox, 12/2/14

"Editors" Sarah Hale, Godey's Lady's Book, 1850.

“Editress” Sarah Hale, Godey’s Lady’s Book, 1850.

This post is a transcript of a 4-minute weekly radio commentary aired on several Utah radio stations. The podcast can be found at the bottom of this post.

If you’ve ever thought you don’t matter, or you don’t make a difference — you’re wrong. History is full of men, women and children who have seen something broken, or wrong, or unjust, and fixed it – for a loved one, or maybe for the whole world.

Take, for example, the story of David and Kathleen Bagby. I came across their story by watching the gut-wrenching documentary, “Dear Zachary: A Letter to a Son About His Father.” David and Kathleen raised their son, Andrew, near San Jose, California. Andrew went on to medical school in Canada where he dated Shirley Turner for a time before ending the turbulent relationship. While doing his residency in Pennsylvania, Andrew was allegedly murdered by Shirley. Shirley then fled to Canada and revealed she was pregnant with a baby fathered by Andrew. While her extradition hearings moved slowly through Canada’s legal system, Shirley was free on bail and gave birth to Andrew and Shirley’s son, Zachary. David and Kathleen Bagby, Andrew’s parents, flew to Canada to seek custody of the child. Before they were able to secure custody, Shirley jumped into the Atlantic Ocean with baby Zachary strapped to her chest in a murder-suicide.

In less than two years, David and Kathleen lost their son, Andrew, and their grandson, Zachary, to horrific deaths. David and Kathleen’s grief and outrage are certainly normal, understandable, and expected. But they didn’t let it paralyze or consume them. They worked for seven years to change Canada’s bail laws. David and Kathleen believed bad bail laws allowed Shirley to be released when she shouldn’t have been, which allowed her to murder her son and kill herself. David and Kathleen were ultimately successful in protecting children by getting Canada to change its bail laws to make bail proceedings more stringent. Two average folks, with no public policy experience, but overflowing with a desire to save children’s lives, made a difference.

Another example. Completely different, but still impactful. If you enjoyed the Thanksgiving holiday with your loved ones, you have Sarah J. Hale to thank.  Hale was “editress” (as she called herself) of the Lady’s Book and the reason we have a national day of thanksgiving today.

Hale worked for 15 years placing “papers before the Governors of all the States and Territories….”

Yet she felt a national statement from President Abraham Lincoln would greatly aid and accelerate “the great Union Festival of America.” So, in late September of 1863, Hale wrote to Lincoln to request he make what had become a regional celebration into a national day of thanksgiving, to be held, as she suggested, annually on the fourth Thursday of November.

A week later, Lincoln issued his Thanksgiving Day Proclamation. One woman, Sarah J. Hale, took action that led to one of the most revered holidays in America.

This should go without saying, but you don’t have to change a country’s laws or start a new holiday to make a difference. Be a good dad, or a good mom. As Lincoln himself famously said, “All that I am, or hope to be, I owe to my angel mother.” Be a good daughter or son, brother or sister. Be the positive influence in your loved ones’ lives. That will be the most impactful, and personally meaningful, difference you can and should make.

And lastly, during this Christmas season, we cannot talk about the power of one to make a difference and leave out Jesus Christ. For Christians, he is the Savior of the world. For all of humanity, he has had the most profound influence for good in the history of civilization. Though he certainly had his supporters, in his lifetime, Jesus also faced intense persecution and opposition, culminating, of course, in his brutal crucifixion. We too, in our own small ways, might face challenges as we stand up for our loved ones, for the good, for the right. But know that you can make a difference, and it’s worth it.

For Sutherland Institute, I’m Dave Buer. Thanks for listening.

Receive this broadcast each week directly to your iTunes by clicking here

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Parents’ rights: Integrating rights and responsibilities

Family beachThe U.S. Constitution is understood to protect the ability of parents to direct the upbringing of their children, free from state interference. That formulation derives from a pair of cases from the 1920s involving disputes over education.

In Meyer v. Nebraska, the Supreme Court invalidated a Nebraska law that prohibited instruction in schools from being provided in German. Among other reasons, the U.S. Supreme Court said the law interfered with parents’ right to choose the way their children were educated.

Then, two years later, the Court struck down an Oregon ballot initiative (inspired by nativist groups who wanted to ensure social uniformity) that required all children to attend public schools (Pierce v. Society of Sisters).

These decisions include the most important legal treatments of the idea of parents’ rights.

The Meyer decision noted: “Corresponding to the right of control, it is the natural duty of the parent to give his children education suitable to their station in life.” The court contrasted ancient ideas of a far different nature:

For the welfare of his Ideal Commonwealth, Plato suggested a law which should provide: “That the wives of our guardians are to be common, and their children are to be common, and no parent is to know his own child, nor any child his parent. . . . The proper officers will take the offspring of the good parents to the pen or fold, and there they will deposit them with certain nurses who dwell in a separate quarter; but the offspring of the inferior, or of the better when they chance to be deformed, will be put away in some mysterious, unknown place, as they should be.” In order to submerge the individual and develop ideal citizens, Sparta assembled the males at seven into barracks and intrusted their subsequent education and training to official guardians. Although such measures have been deliberately approved by men of great genius, their ideas touching the relation between individual and State were wholly different from those upon which our institutions rest; and it hardly will be affirmed that any legislature could impose such restrictions upon the people of a State without doing violence to both letter and spirit of the Constitution.

The Pierce Court neatly explained the alternative understanding of liberty that prevailed in the United States:

The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.

To the Meyer and Pierce courts, rights and responsibility are integrated in the very nature of things. Continue reading

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Is religious expression a ‘fundamental human right’ or a ‘limited right’? – Sutherland Soapbox, 11/25/14

ReligiousSymbolsThis post is a transcript of a 4-minute weekly radio commentary aired on several Utah radio stations. The podcast can be found at the bottom of this post.

This week I want to talk about religious liberty, which is an issue that is likely to get a fair amount of attention in the upcoming legislative session. If you want to understand why this has become such a heated issue in America, you first have to understand how the various sides view the meaning of religious liberty. Not surprisingly, most of the attention on the issue focuses on where those perspectives disagree.

The first perspective, and the one that most conservatives claim, is the “fundamental human right” perspective. In this view, religious liberty has three main components: first, the ability to freely seek for answers to questions of meaning and value in life from sources that are more than merely human; second, the ability to freely organize and worship in line with the answer one finds to those questions; and third, to live freely in private and in public according to the moral convictions and conscience that are shaped by the answers to those questions.

From this perspective, we have a moral duty to respect this fundamental right for everyone, even if we do not like how they exercise it. To do otherwise is to abandon respect for the dignity that all people deserve as free and reasoning beings in their pursuit of moral and spiritual truth. Some say this means conservatives are arguing that people have faith should have free reign to do whatever they want. But this is irrational because in the “fundamental human right” perspective, people of faith have the same moral duty to respect the fundamental rights and dignity of others as they seek for themselves, and this should correctly be reflected in the law. But there should be a high level of tolerance from both the law and society for both public and private expressions of religious liberty. Additionally, if society desires to legally restrict this fundamental human right, it should be required to have a compelling reason for doing so.

A second perspective on religious liberty, and the one articulated most often by progressives, is the “limited right” perspective. In this view, religious liberty includes the ability to freely worship according to one’s beliefs in private, as well as the ability to freely organize in order to privately worship. But religious liberty is significantly limited outside this narrow set of rights. Continue reading

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Reflections from Rome: Inspiring conference focuses on the complementarity of men and women in marriage

humanumLast week my wife and I had the privilege of attending an historic international, interreligious colloquium in the Vatican.  Entitled Humanum: The Complementarity of Man and Woman, the conference explored the complementarity of men and women in marriage.  Participants came from countries all over the world and from more cultures and religious traditions than appear on those “Coexist” bumper stickers.  Cardinal Mueller and his colleagues were wonderfully gracious hosts.

If the subject had been theology, the conference might have taken on the feel of a debate.  But in talking about the unique value that women and men individually bring to marriage, to their children and to each other, the common ground was deep, broad and immediate.  The presentations from Christian faiths drew on patterns and scripture that were familiar, while each faith’s emphasis differed enough to prompt new reflection on how I could be a better husband and father.  Pope Francis’ opening speech was a clarion call to strengthen marriage for the benefit of children and society.  Catholic clergy have spent centuries systematically studying these things, and they lay out the rationale and richness of marital union.  Jewish humanum3leaders, like colloquium speaker Rabbi Lord Jonathan Sacks, blend scriptural detail, personal experience and their unique humor for a memorable portrait of spousal love and growth.  LDS representative President Henry B. Eyring shared much of the church’s Family Proclamation  though his speech may be best remembered for the personal expressions toward his wife and family which moved some of the audience to tears.

One presentation came from Daphne Sheng, a Taiwanese woman, speaking from her Taoist perspective.  I’ve made casual reference to Yin and Yang before, as perhaps you have, trying to use them as examples of some sort of fit between different things.  Our speaker shared the proverbial “rest of the story.”  Yin and Yang have something of each other within themselves, yet are also very different.  They fit and work together within the bounds of a circle.  So their differences matter and enable the fit, but so does the context in which they connect.  I can’t do the concept justice in a brief post like this one, but it gave me something new that I need to explore. Continue reading

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Intergenerational families: Humanity’s keystone species

self-controlAt Yellowstone last summer, we heard about keystone species, “a species that has a disproportionately large effect on its environment relative to its abundance.” These species solve large ecological problems that would otherwise threaten the very existence of an ecosystem.

Consider the challenge of transmitting virtue. It was commonplace among the Founders of the United States to note that a free society requires a virtuous people. They accepted Edmund Burke’s observation: “Men qualify for freedom in exact proportion to their disposition to put moral chains upon their own appetites. Society cannot exist unless a controlling power is put somewhere on will and appetite, and the less of it there is within, the more there must be without.”

In an authoritarian state, social order of a sort is maintained by extensive controls from outside the individual. In a free society, virtue must be transmitted into the hearts of individuals—but not by the state. Consider this powerful observation of Professor Bruce C. Hafen:

[I]t remains fundamental to democratic theory that parents, through this institutional role of the family, control the heart of the value-transmission process. As that crucial process is dispersed pluralistically, the power of government is limited. It is characteristic of totalitarian societies, by contrast, to centralize the transmission of values. Our system thus fully expects parents to interact with their children in ways we would not tolerate from the state—namely, through the explicit inculcation of intensely personal convictions about life and its meaning. Continue reading

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EPA’s proposed carbon rule hits most vulnerable hardest

epa-logo_edited-1The U.S. Environmental Protection Agency’s (EPA) proposed carbon rule is the latest in a series of regulations that will increase the cost of electricity and natural gas at a time when wages are stagnant and a lot of people are struggling to get by.

According to a recently released study, if this new carbon rule is imposed, the average Utah family’s electric bill will go up by $124 and their gas bill will increase by $266 annually, for a total of $32.50 per month. If you don’t think that’s a meaningful amount, then you’re out of touch with a lot of Utah families that are living paycheck to paycheck and are all too often faced with a choice between heating their houses or buying groceries for their children.

These regulations are a backdoor tax plain and simple, and the most regressive and punishing kind possible. It may not hurt you or me to pay an extra few bucks a month to satisfy an environmental feel-good agenda, the results of which will have absolutely no measurable impact on the global climate. But it does hurt the most vulnerable among us. It forces them to pay a larger percentage of their paycheck for everyday needs like heat and electricity, cutting into what disposable income they may have and harming not just their quality of life but also their ability to live. It’s despicable and the height of hypocrisy for ivory tower do-gooders to inflict real pain and suffering on others so that they can enjoy a clear global warming conscience in the comfort of their beautiful homes and SUVs. Continue reading

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Encouraging steps in Utah criminal justice reform

prison-reformSutherland Institute is encouraged by the direction of the policy recommendations presented to two legislative interim committees yesterday, and to the governor last week, by the Utah Commission on Criminal and Juvenile Justice. Overall, they represent a reasonable and, just as important, a moral perspective on criminal justice reform.

As a whole, they point lawmakers in the right direction to secure true justice for individuals and society: ensuring that prison sentences are only imposed when a crime merits it; helping individuals productively reintegrate into society after a prison sentence; and protecting the public from individuals that have shown a truly harmful pattern of criminal behavior.

Moreover, if implemented and administered effectively, the proposed policies should lead to a measurable savings to taxpayers. Proper executive and legislative oversight will be a crucial component to realizing this reduced cost of criminal justice, creating the possibility for a wise re-investment of taxpayer resources. But wise fiscal stewardship is something that the state is widely, and properly, recognized for.

Sutherland encourages Utah policymakers to give these recommendations serious consideration, while adding to them constructive and beneficial changes that are brought forward through the policymaking process. We look forward to helping support reasonable, conservative reforms to Utah’s criminal justice system in the 2015 Legislative Session.

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Marriage and family focus of Vatican Interreligious Colloquium – Sutherland Soapbox, 11/18/14

This post is an expanded transcript of a 4-minute weekly radio commentary aired on several Utah radio stations. The podcast can be found at the bottom of this post.

Pope Francis greets President Henry B. Eyring in the Synod Hall at Vatican City as colloquium on marriage begins.© Photograph by Chris Warde-Jones/

Pope Francis greets President Henry B. Eyring in the Synod Hall at Vatican City as colloquium on marriage begins.© Photograph by Chris Warde-Jones/

Today, we’ll take a look at marriage and family: the soil, root, vine and fruit of personal growth and functional culture … of spiritual and economic prosperity.

As you’ve probably heard, an important gathering of religious leaders is underway this week at the Vatican in Rome, Italy – a three-day conference titled “An International Interreligious Colloquium on the Complementarity of Man and Woman.” In his opening remarks to the distinguished representatives and participants, Pope Francis warmly and personably observed,

“You must admit that ‘complementarity’ does not roll lightly off the tongue! Yet it is a word into which many meanings are compressed. It refers to situations where one of two things adds to, completes, or fulfills a lack in the other. …

“This complementarity is a root of marriage and family. For the family grounded in marriage is the first school where we learn to appreciate our own and others’ gifts, and where we begin to acquire the arts of cooperative living. …

“We know that today marriage and the family are in crisis. We now live in a culture of the temporary, in which more and more people are simply giving up on marriage as a public commitment. This revolution in manners and morals has often flown the flag of freedom, but in fact it has brought spiritual and material devastation to countless human beings, especially the poorest and most vulnerable.

“Evidence is mounting that the decline of the marriage culture is associated with increased poverty and a host of other social ills …

The family is the foundation of co-existence and a remedy against social fragmentation. Children have a right to grow up in a family with a father and a mother capable of creating a suitable environment for the child’s development and emotional maturity. …the contribution of marriage to society is ‘indispensable’; …it ‘transcends the feelings and momentary needs of the couple.’ … (from the Apostolic Exhortation Evangelii Gaudium, n. 66) …

Continue reading

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Pension madness


According to a just-released study by State Budget Solutions, Utahns are in hock to the tune of $16,350 apiece to the state employee pension system, for about $34 billion of unfunded liability. Just for context, that’s about five times the per capita taxes in the state.

Utah’s pension system, like that of virtually all states, didn’t have enough reserves and expected revenues to cover the obligations that have been made to workers in their retirement years. Generally speaking, that leaves several alternatives when the bill comes due for making up the difference: shift spending from other priorities; raise taxes; break the pension promises that have been made to workers; or reform the system so that future inflows equal future outflows.  After the economic downturn of 2008, Utah addressed the problem head-on and passed sweeping pension reforms. 

It will take time to grow out of the dip, as the reforms did not apply to current workers, but all new employees starting in July 2011. With those reforms, however, Utah is on solid footing and is regarded as a leader in pension reform around the country.

How do states get so far in debt? Easy peasy. Just kick the can down the road. Pay and benefit increases are generally expensive and take money away from other spending priorities in the short term. Pension increases, on the other hand, are paid way out in the future when someone else is in charge and, therefore, on the hook to fix. They also don’t count against any annoying balanced budget requirements, so making promises we know we can’t keep is a win-win, at least until the bill comes due.

Every year that pension liabilities accumulate, the options to fix them get narrower and more painful. The Band-Aid approach is to shovel a little extra money into the pot every once in a while to keep the decision day far enough out there to ignore, but that doesn’t address the root problem of basically writing post-dated checks.

It’s hardly leadership, and is a lot closer to irresponsible to do that. States like California and Illinois are close to the point where pension liabilities are budget breakers. Cities like Detroit and Stockton, Calif., have already gone into bankruptcy as a result of extravagant public sector pension promises that anyone with a two-dollar calculator and temporal awareness could have known would lead to crises.

So what to do? The biggest problem is that most public sector pensions are of the defined benefit type, meaning that they promise to pay a certain amount for the life of the retiree regardless how much was put in. The private sector, meanwhile, is moving almost entirely to defined contribution plans, in which the employee and employer both contribute to a pension that then pays out according to how much was put in. That encourages smart decisions by both the employee and employer, and also reduces the risks to both since everyone knows that what comes out of the system has to go in first. I’m not a mathematician, but that seems to make sense to me.

Utah largely moved away from the defined-benefit program with the reforms passed in 2010. This state has course-corrected and is on solid finanical footing. Other states have not been as wise and their problems continue to compound. Ignoring this problem will not make it go away. 

So what to do? The biggest problem is that most public sector pensions are of the defined benefit type, meaning that they promise to pay a certain amount for the life of the retiree regardless how much was put in. The private sector, meanwhile, is moving almost entirely to defined contribution plans, in which the employee and employer both contribute to a pension that then pays out according to how much was put in. That encourages smart decisions by both the employee and employer, and also reduces the risks to both since everyone knows that what comes out of the system has to go in first. I’m not a mathematician, but that seems to make sense to me.

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Ronald Reagan: Still remarkably relevant today

Official_Portrait_of_President_Reagan_1981Thirty-five years ago today, on Nov. 13, 1979, Ronald Reagan announced his candidacy for the office of President of the United States. Though a generation and a half have passed since then, in many respects his words and the circumstances they describe sound remarkably relevant today.

They tell us we must learn to live with less, and teach our children that their lives will be less full and prosperous than ours have been; that the America of the coming years will be a place where – because of our past excesses – it will be impossible to dream and make those dreams come true. I don’t believe that. And, I don’t believe you do either. That is why I am seeking the presidency. I cannot and will not stand by and see this great country destroy itself. Our leaders attempt to blame their failures on circumstances beyond their control, on false estimates by unknown, unidentifiable experts who rewrite modern history in an attempt to convince us our high standard of living, the result of thrift and hard work, is somehow selfish extravagance which we must renounce as we join in sharing scarcity. I don’t agree that our nation must resign itself to inevitable decline, yielding its proud position to other hands. I am totally unwilling to see this country fail in its obligation to itself and to the other free peoples of the world.

Reading the transcript or watching the video of the full announcement address provides additional meaningful insights — about the man twice elected as our country’s chief executive, and about us.

As highlighted in a comprehensive online resource about our 40th president,

Ronald Wilson Reagan was the first – and last – modern conservative President of the United States. That fact alone accounts for the divergent recountings of his terms as leader of the free world. Members of the Political Left still revile Reagan, while simultaneously dismissing the accomplishments of his terms in office as if the major changes he envisioned and championed would have transpired without his leadership.

During Reagan’s tenure, those from the Left celebrated the balance of power and proclaimed the moral equivalence of the United States and the Soviet Union, content to live in a world divided into camps of the slave and the free. And few dared dream that this often precarious and edgy state of affairs could end in the span of their lives. But together with a band of courageous allies and inspired aides, Reagan adopted policies that eventually brought down the Iron Curtain, making the world both safer and freer than anyone could have hoped when the perilous decade of the 1980s began. In the process, Reagan demonstrated irrefutably that centralized power and bureaucratic planning cannot be harnessed to serve the public good. And the Left cannot forgive Reagan for that – much less acknowledging or congratulating his victory.

Regardless of one’s personal philosophy or political affiliation, of the many compelling messages proclaimed by Ronald Reagan, two more stand out as especially pertinent in today’s world:

We…believe that the preservation and enhancement of the values that strengthen and protect individual freedom, family life, communities and neighborhoods and the liberty of our beloved nation should be at the heart of any legislative or political program presented to the American people. (February 6, 1977)


Freedom is never more than one generation away from extinction. We didn’t pass it on to our children in the bloodstream. The only way they can inherit the freedom we have known is if we fight for it, protect it, defend it, and then hand it to them with the well-taught lessons of how they in their lifetime must do the same. And if you and I don’t do this, then you and I may spend our sunset years telling our children and our children’s children what it was once like in America when men were free. (March 30, 1961)

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6th Circuit marriage decision is powerfully protective of liberty – Sutherland Soapbox, 11/11/14

Wedding ringsThis post is a transcript of a 4-minute weekly radio commentary aired on several Utah radio stations. The podcast can be found at the bottom of this post. 

Last week’s decision of the U.S. Court of Appeals for the Sixth Circuit has thrown a wrench in the “inevitability” of a national mandate of gender-neutral marriage. The conventional wisdom after the U.S. Supreme Court declined to hear the marriage cases in Utah and a handful of other states was that the issue was over. The confident prediction was of the eventual triumph of the (misplaced) idea that the U.S. Constitution prohibits states from recognizing in their laws that marriage is the union of a complementary set of a wife and a husband.

Now that the federal courts in at least one region of the country are bound to respect voters’ beliefs about the meaning of marriage, there will likely be an attempt to get the Supreme Court to force all the states to get in line. But this split in the Appeals Courts also provides the Supreme Court an opportunity to do the right thing and allow marriage to reflect the principle that children deserve to be raised by a married mother and father.

The Sixth Circuit majority’s conclusion about marriage is important. The way it reached that conclusion is also critical and serves as an example of restraint and adherence to the Constitution that serves as a model for other courts.

Consider this analogy from the decision:

All Justices, past and present, start their assessment of a case about the meaning of a constitutional provision by looking at how the provision was understood by the people who ratified it. If we think of the Constitution as a covenant between the governed and the governors, between the people and their political leaders, it is easy to appreciate the force of this basic norm of constitutional interpretation—that the originally understood meaning of the charter generally will be the lasting meaning of the charter. When two individuals sign a contract to sell a house, no one thinks that, years down the road, one party to the contract may change the terms of the deal. That is why the parties put the agreement in writing and signed it publicly—to prevent changed perceptions and needs from changing the guarantees in the agreement. So it normally goes with the Constitution: The written charter  cements  the limitations on government into an unbending bulwark, not a vane alterable whenever alterations occur—unless and until the people, like contracting parties, choose to change the contract through the agreed-upon mechanisms for doing so.

This approach is powerfully protective of liberty. Rather than assuming major social controversies should be resolved by judges second-guessing the normal political process, in the absence of clear constitutional authority to do so, this approach takes seriously the written-down nature of the Constitution. Without an anchor in the text and original meaning of the Constitution, judges may invent (for however noble a motive) interpretations of the document that have the effect of “constitutionalizing” their own views of what makes “enlightened” laws. Perhaps their decisions will be accepted by others and perhaps not. But, in the process, citizens are taught, in Professor Robert Nagel’s words, “the scary lesson that anything can be done with words” as the Court acts “like some lumbering bully, to disrupt social norms and practices at its pleasure.”

The Framers knew changes might be desirable and necessary and established a difficult but not insurmountable way to change the terms of the Constitutional charter.

The amendment process ensures deliberation by creating a slow process, requiring broader support for the change than would be required for simple legislation and by ensuring ratification by the citizens—the very ones who will be affected by the change.

In the Sixth Circuit decision, one judge dissents and calls the amendment process impractical. If “impractical” means “difficult,” then, yes, that’s precisely the point. Having a fundamental charter that’s consistent and predictable is the very essence of the rule of law. Preventing novel changes to the charter being made on a whim or by handful of appointed officials is a feature, not a bug of our constitutional system.

For Sutherland Institute, I’m Dave Buer. Thanks for listening.

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Below are some further highlights from the court’s decision:

What remains is a debate about whether to allow the democratic processes begun in the States to continue in the four States of the Sixth Circuit or to end them now by requiring all States in the Circuit to extend the definition of marriage to encompass gay couples. Process and structure matter greatly in American government. Indeed, they may be the most reliable, liberty- assuring guarantees of our system of government, requiring us to take seriously the route the United States Constitution contemplates for making such a fundamental change to such a fundamental social institution.

Of all the ways to resolve this question, one option is not available: a poll of the three judges on this panel, or for that matter all federal judges, about whether gay marriage is a good idea. Our judicial commissions did not come with such a sweeping grant of authority, one that would allow just three of us—just two of us in truth—to make such a vital policy call for the thirty-two million citizens who live within the four States of the Sixth Circuit: Kentucky, Michigan, Ohio, and Tennessee. What we have authority to decide instead is a legal question: Does the Fourteenth Amendment to the United States Constitution prohibit a State from defining marriage as a relationship between one man and one woman?


Applied here, this approach permits today’s marriage laws to stand until the democratic processes say they should stand no more. From the founding of the Republic to 2003, every State defined marriage as a relationship between a man and a woman, meaning that the Fourteenth Amendment permits, though it does not require, States to define marriage in that way.


A dose of humility makes us hesitant to condemn as unconstitutionally irrational a view of marriage shared not long ago by every society in the world, shared by most, if not all, of our ancestors, and shared still today by a significant number of the States. Hesitant, yes; but still a rational basis, some rational basis, must exist for the definition. What is it? Two at a minimum suffice to meet this low bar. One starts from the premise that governments got into the business of defining marriage, and remain in the business of defining marriage, not to regulate love but to regulate sex, most especially the intended and unintended effects of male-female intercourse. Imagine a society without marriage. It does not take long to envision problems that might result from an absence of rules about how to handle the natural effects of male-female intercourse: children. May men and women follow their procreative urges wherever they take them?  Who is responsible for the children that result? How many mates may an individual have? How does one decide which set of mates is responsible for which set of children? That we rarely think about these questions nowadays shows only how far we have come and how relatively stable our society is, not that States have no explanation for creating such rules in the first place.


To take another rational explanation for the decision of many States not to expand the definition of marriage, a State might wish to wait and see before changing a norm that our society (like all others) has accepted for centuries. That is not preserving tradition for its own sake. No one here claims that the States’ original definition of marriage was unconstitutional when enacted. The plaintiffs’ claim is that the States have acted irrationally in standing by the traditional definition in the face of changing social mores. Yet one of the key insights of federalism is that it permits laboratories of experimentation—accent on the plural—allowing one State to innovate one way, another State another, and a third State to assess the trial and error over time.


Consider how plaintiffs’ love-and-commitment definition of marriage would fare under their own rational basis test. Their definition does too much because it fails to account for the reality that no State in the country requires couples, whether gay or straight, to be in love.  Their definition does too little because it fails to account for plural marriages, where there is no reason to think that three or four adults, whether gay, bisexual, or straight, lack the capacity to share love, affection, and commitment, or for that matter lack the capacity to be capable (and more plentiful) parents to boot. If it is constitutionally irrational to stand by the man-woman definition of marriage, it must be constitutionally irrational to stand by the monogamous definition of marriage. Plaintiffs have no answer to the point. What they might say they cannot: They might say that tradition or community mores provide a rational basis for States to stand by the monogamy definition of marriage, but they cannot say that because that is exactly what they claim is illegitimate about the States’ male-female definition of marriage. The predicament does not end there.  No State is free of marriage policies that go too far in some directions and not far enough in others, making all of them vulnerable—if the claimants’ theory of rational basis review prevails.


Neither was the decision to place the definition of marriage in a State’s constitution unusual, nor did it otherwise convey the kind of malice or unthinking prejudice the Constitution prohibits. Nineteen States did the same thing during that period. Human Rights Campaign Found., Equality from State to State 2006, at 13–14 (2006), available at And if there was one concern animating the initiatives, it was the fear that the courts would seize control over an issue that people of good faith care deeply about. If that is animus, the term has no useful meaning.

Who in retrospect can blame the voters for having this fear? By then, several state courts had altered their States’ traditional definitions of marriage under the States’ constitutions.  Since then, more have done the same. Just as state judges have the authority to construe a state constitution as they see fit, so do the people have the right to overrule such decisions or preempt them as they see fit.


In referring to “marriage” rather than “opposite-sex marriage,” Loving confirmed only that “opposite-sex marriage” would have been considered redundant, not that marriage included same-sex couples. Loving did not change the definition. That is why the Court said marriage is “fundamental to our very existence and survival,” 388 U.S. at 12, a reference to the procreative definition of marriage. Had a gay African- American male and a gay Caucasian male been denied a marriage license in Virginia in 1968, would the Supreme Court have held that Virginia had violated the Fourteenth Amendment? No one to our knowledge thinks so, and no Justice to our knowledge has ever said so. The denial of the license would have turned not on the races of the applicants but on a request to change the definition of marriage. Had Loving meant something more when it pronounced marriage a fundamental right, how could the Court hold in Baker five years later that gay marriage does not even raise a substantial federal question? Loving addressed, and rightly corrected, an unconstitutional eligibility requirement for marriage; it did not create a new definition of marriage.


No doubt, many people, many States, even some dictionaries, now define marriage in a way that is untethered to biology. But that does not transform the fundamental-rights decision of Loving under the old definition into a constitutional right under the new definition. The question is whether the old reasoning applies to the new setting, not whether we can shoehorn new meanings into old words. Else, evolving-norm lexicographers would have a greater say over the meaning of the Constitution than judges.

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