Recently by Jerri Lynn Ward, J.D.: Using ‘The Arm of Flesh': The Fallacy of Attacking Ron Paul on Abortion
And the Egyptians made the children of Israel to serve them with rigour. And they made their lives bitter with hard bondage in mortar, and in brick and in all manner of service in the field: all their service, wherein they made them serve, was with rigour. ~ Exodus 1: 13-14
During the great famine in the time of Jacob and his son Joseph, the Hebrews migrated to Egypt and placed themselves under the protection of the Pharaoh whom Joseph served. Because of the Pharaoh's love and respect for his able servant, Joseph, he honored the Hebrews by assigning them the fertile pastures of Goshen and appointing them shepherds of his herds. They were still beholden to the Pharaoh's rule and the requirements of the work-levy placed on all people ruled by him, but they were offered some measure of autonomy through the discretion of the Pharaoh and, as a result, the Hebrews prospered and multiplied under the highly centralized, but benevolent (at that point) rule of the Egyptians.
However, all dictators, benevolent or not, pass into history. A new dictator rose to power in Egypt. This Pharaoh turned his power against the Hebrews in a deadly and determined effort to reduce their numbers, wealth and freedom through murder and the use of the work-levy. The land of Goshen was placed under the centralized tyranny of a king who fancied himself to be a god, against whom no higher authority existed. Then Moses appeared upon the scene. Through him, God destroyed the power of Pharaoh and liberated His people, leading them out of Egypt toward the Promised Land.
The history of our country has some parallels. First, pilgrims migrated to America and were allowed to set up almost autonomous colonial governments under which the colonists thrived. Second, the Glorious Revolution of 1688 transferred power from the King – who was almost indulgent in his approach to the colonies — to a Parliament that then began an almost century long confrontation with the colonies because of its attempts to usurp the authority of the colonial assemblies. The colonist, jealous of the localism they had always enjoyed, fought back and won. Later, they confirmed their commitment to localism by the federalism of the Constitution.
Of course, a system of civil government that disperses authority and settles it upon the units closest to the people requires great responsibility from the people. If they are to preserve their liberty, they must be vigilant in observing and pushing back the would-be local and state tyrants who seek to usurp the God-given authority of individuals, families, churches and communities. This requires effort and risk. Unfortunately, history is replete with those who lack the fortitude to do this and, instead, seek refuge in tyrants to provide security.
And wherefore hath the LORD brought us unto this land, to fall by the sword, that our wives and our children should be a prey? Were it not better for us to return into Egypt? And they said one to another, Let us make a captain, and let us return into Egypt. Number 14:3-4
The Hebrews, liberated by God from Egypt, are a case in point. While migrating to the Promised Land the people continually voiced a desire to turn around and return to Egypt. Rather than trusting in God and the liberty He offered, coupled with the responsibility expected of them, they voiced hostility to freedom and a preference for the comfort of enslavement to a power which presumed to be the final arbiter of their fate. As a result, the people were condemned to wander through the wilderness until the skeptics died off and Joshua assumed the authority to lead them into the Promised Land.
This is a story which has — in the last century — come to America. Americans, instead of directly exercising their individual responsibilities at the local level, have increasingly sought the power of the strongest most centralized power available to achieve their ends: the federal government. In the process, they have placed their Constitutional birthright in peril by ignoring and destroying the very localism which brought freedom and prosperity to this land. They have, in the words of Gary North, sought "salvation through federal legislation."
But it is not just to Congress they have looked for salvation; they have looked to the federal courts. The most pernicious tool being used by the enemies of localism and liberty is a profoundly wrong interpretation and expansion of the reach of the 14th Amendment. Regrettably, as I discussed here, it has, in recent times, also been wielded by those who purport to protect the individual and the family, because of a misguided trust that the federal Pharaoh as embodied in the federal courts, president and Congress can somehow be forced to tow the correct line through case law and the ballot box.
A cogent example of this is the written attack on Ron Paul by Michael Farris, chairman of the Home School Legal Defense Association, which he posted on his Facebook page:
Ron Paul is an enemy of the legal principles that the homeschooling movement has used successfully to defend our freedom to teach our own children. He recently said that he does not believe that the 14th Amendment trumps the 10th Amendment.
In his original and follow-up posts, Farris engages in technical legal analysis involving the reasoning and pronouncements of jurists who have managed to eke out a few cases favorable to families. I understand that a lawyer, to avoid a malpractice claim and out of pragmatism, will utilize such methods in zealous advocacy for his client.
But, the emphasis that Farris puts on the success he has had in arguing the 14th Amendment and the incorporation doctrine — as well as the vociferousness with which he attacks Ron Paul for condemning the method — reminds me of the movie The Bridge on the River Kwai where British Colonel Nicholson first resists building a bridge for the enemy Japanese, but once forced to cooperate, becomes so invested in it that he loses sight of the actual reality that the bridge was going to be used as an expedient for killing Allied troops. This is an example of the Doctrine of Sunken Costs which causes people to continue the pursuit of unwise policies to the ultimate detriment of their own interests.
In this case Farris has invested a lot of effort appealing to a body of law which is built upon a foundation of sand. As I wrote in Using the Arm of Flesh, Raoul Berger established that the 14th Amendment was not written to incorporate the federal Bill of Rights and, thereby to destroy the 10th Amendment, but for the very limited purpose of obliterating Dred v. Scott and to incorporate and provide constitutional authority for the 1866 Civil Rights Act. In his book, Federalism: The Founders' Design, Berger wrote this about the 14th Amendment:
In short, the reader will vainly search in the legislative history of the Amendment for evidence that surrender of the State's police power over internal affairs under the rubric of "commerce" or any other rubric – putting contracts, ownership of property and access to the courts to one side – was contemplated by the framers. To the contrary, as Justice Field declared on behalf of the Court in 1885, "Neither the (Fourteenth) amendment — -nor any other amendment, was designed to interfere with the power of the State, sometimes termed its police power, to prescribe regulations, to promote health,…education…good order of the people."
Like all things built upon a foundation of sand, this body of law is subject to the radical shifting of its foundation and the ultimate toppling of all decisions favorable to homeschoolers . The future peril is amply demonstrated in the response to Farris written by constitutional scholar and author, Kevin Gutzman as he details the tragic outcomes which have already occurred in other arenas brought about by the misuse of the 14th Amendment.
Given all this, the attack on Ron Paul for his principled desire to inform the people of the proper role of the federal government and to lead our country back to its constitutional roots — wherein the federal judiciary and government is put firmly back into its proper role — hearkens back to Dathan's attempted interference with the efforts of Moses to lead his people away from enslavement to the Pharaoh. It will, ultimately come back to bite us, just as submitting to the presumed sovereignty of Pharaoh, and forgetting that of God, did to the Hebrews.
A profoundly important question for proponents of homeschooling is: shall we continue to build upon the unstable foundation of a body of law which is firmly in the control of a federal judiciary which has treated the Constitution as a malleable document subject to the whims of those on the bench at the time? Shall we return time and time again to Pharaoh out of the wrong-headed fear that we can't prevail at the local and state levels, thus allowing the provisions of our state constitutions and our ability to self govern to atrophy? Shall we reach the point warned of by a former president of Stanford, Gerhard Casper, when he said: "The American concept of the legitimacy of government is closely tied to the Constitution [the "secular equivalent of the Bible"]? Its limitless manipulation may endanger the very legitimacy that has been the greatest accomplishment of American constitutionalism."?
Or, instead, shall we use our energy and resources to assume the responsibilities of our liberties by challenging the pharaohs on the local and state level who presume to usurp the authority of parents and families by passing, strengthening and arbitrarily enforcing compulsory education laws and curfews, backed up by the might of the state judiciary and child welfare agencies that can't conceive of a world where parents hold the ultimate responsibility and authority for the educating and rearing of their children. (Nothing in the case law about the 14th Amendment adequately protects against the growth of such regulation.) Shall we continue to permit school districts — and the special interests that financially benefit from them — to de-capitalize and financially weaken families through crushing taxation used to pay for bloated school budgets and out-of-control debt financed by bonds?
The state and local levels are where the effort must be expended for homeschoolers to thrive and multiply. This is where the showdown must happen.
Ron Paul understands this and that is why he is a champion of homeschooling. He is a proponent of preserving the constitutional approach of dispersing authority to the individual, family, city, county and state.
He has proven this by introducing legislation to alleviate the federal tax burden on homeschooling parents who do not use the government schools for which they are forced to pay and to ensure that the federal government does not discriminate against homeschoolers in its policies. These are approaches that can be constitutionally accomplished by Congress without impeding on state or local authority.
Ron Paul wishes to return power and authority to parents and the states in accordance with the 9th and 10th Amendments, so that we may more effectively attack the presuppositions and usurpations of parental authority committed by the local and state institutions holding our children in thrall, without feeling the need of being held captive to the years of litigation in federal courts necessary to possibly eke out one or two good federal court decisions.
Like the Hebrews, who desired to return to Pharaoh because of exaggerated remembrance of the "cucumbers, melons, onions and leeks of Egypt", while forgetting the murder of their sons and the application of the whip, homeschoolers and their legal representatives have too long sought the protection of modern-day Pharaoh at the federal level. They have insisted upon using tools that will ultimately strengthen Pharaoh when he turns against us. It is time to focus on the other weapons in our arsenal and, especially, upon the Providence of the One Who created the family and commanded parents to educate their children.
So, I say to Michael Farris, dispense with your Dathan-like attacks upon Ron Paul. Instead, serve as a modern-day Joshua who leads his people away from Pharaoh and into the Promised Land. Your people have much work to do in the Land of Canaan.
Jerri Lynn Ward [send her mail] is an attorney practicing in Austin, Texas. She is a member to the Travis County Republican Executive Committee and an elected official in Travis County. She is the President of the Travis County Chapter of Texas Right to Life and was named Texas Right to Life's Pro-Life Attorney of the Year in 2006.