We Do Not Consent (Op-Ed)

Image Credit: Ted Eytan / CC & rawpixel.com / Public Domain

By Ioannes Xaverius –

The State of Tennessee recently passed a law entitled The Adult Entertainment Act, which has commonly been referred to as “the drag show ban.” The law prohibited “topless dancers, go-go dancers, exotic dancers, strippers, male or female impersonators who provide entertainment that appeals to a prurient interest” from performing on public property or in places where children could see such performances.

On 2 June 2023, Federal District Court Judge Thomas Parker (a Trump appointee) declared the A.E.A. unconstitutional because it violated the 1^st Amendment’s free speech protections as incorporated to the states through the due process clause of the 14^th Amendment ¹. 

To anyone old enough to remember the Year of Our Lord 2020, the irony is richer than red velvet cake.

Three years ago we were told that the states could do anything they pleased – enact mask and vaccine mandates, lock people in their homes for weeks or months on end, close down businesses, schools, and churches – without in any way violating the rights and liberties of the people so long as they acted in the name of protecting against COVID-19. Now, when a state acts to protect children from indecent exposure, that somehow violates the First Amendment’s guarantee of free political speech and assembly. 

There are a multitude of constitutional problems with Judge Parker’s ruling.

First, this ruling is unconstitutional because the Supreme Court (and lower federal courts) have no constitutional authority to hear cases appealed from state courts, nor do they possess any authority to overturn state laws. This supposed authority comes from Section 25 of the Judiciary Act of 1789, which is itself unconstitutional because Congress has no authority to expand or decrease the jurisdiction of the Supreme Court. Its jurisdiction is defined in Article III, and the lower federal courts cannot possibly have a greater jurisdiction than the Supreme Court does. When quizzed by Patrick Henry at the Virginia Ratification Convention in 1788, John Marshall declared that the Supreme Court had no constitutional power to overturn state laws. 

Second, the federal Bill of Rights was never intended to apply to the States, just to the Federal government. After all, the states have their own bills of rights in their state constitutions. This means that the Incorporation Doctrine has no basis, either in the Constitution, the preamble to the Bill of Rights, or in any other document authored by the Founding Fathers. 

Third, the historical evidence indicates that the 14^th Amendment was never properly ratified by the States, meaning that it isn’t even part of the U.S. Constitution (see A Constitutional History of the United States by Forrest McDonald). 

Fourth and finally, Article IV, Section 4 of the Constitution guarantees “every state in this union a republican form of government.” What kind of a republic do you have if the laws enacted by your elected representatives can be overturned by some outside tribunal? Is the federal court system a republican form of government for every state? If so, why go to the trouble of electing and paying state legislators, governors, and judges? Mr. Earl Starbuck has explained all of this in detail and at significant length elsewhere. 

¹The full text of the ruling can be read here. For an article covering Governor Bill Lee’s immediate response, see here. For the Associated Press’s coverage of the story, see here.

The problems with this ruling are not just constitutional, but moral.

Supposedly, Judge Parker believes that common sense is extinct in Tennessee, that the hayseeds, hillbillies, and rubes who passed this law were too stupid to understand how it might be misused to persecute female Elvis impersonators (see pages 43-44 of Parker’s obiter dicta).

This protestation strains credulity past the breaking point. It is a strawman argument, a squirrely act of equivocation, a hollow sleight-of-hand trick. The purpose of the A.E.A. was not to ban the “Sisters” scene from White Christmas. Its purpose was to prevent and punish sexually explicit public performances planned by perverts to prey on children. 

The need for such a law becomes readily apparent when one remembers that ours is the century of the child drag queen, of drag queen story-hour, of Netflix’s Cuties, and of activists reminding us regular people that the politically-correct term for pedophiles is “minor-attracted-persons.” Given this is the case, a concerned parent might just perhaps have reasonable concerns about the ongoing normalization of child predation. He or she might also reasonably demand that steps be taken to prevent such child predation, such as, for example, prohibiting perverts from putting on sexually explicit performances in the local park.

Oh, but it gets worse. Judge Parker openly admits that the “speech” (or, rather, the actions) being prohibited are sexually explicit, and may even be harmful to minors, but insists that these actions are nevertheless protected by the First Amendment:

“There is no question that obscenity is not protected by the First Amendment. But there is a difference between material that is ‘obscene’ in the vernacular, and material that is ‘obscene’ under the law…Moreover, speech that is not obscene—which may even be harmful to minors—is a different category from obscenity. Simply put, no majority of the Supreme Court has held that sexually explicit—but not obscene—speech receives less protection than political, artistic, or scientific speech…the First Amendment protects sexual expression which is indecent but not obscene.”²

In other words, Judge Parker’s ruling effectively declares that the Friends of George’s (the plaintiffs in the case) and anyone else with a mind to do so have an absolute, constitutionally-protected right to march into public spaces and expose children, not only to drag shows, but also to every other kind of sexually explicit public performance prohibited by the Adult Entertainment Act. This ruling, therefore, is not just unconstitutional, but also idiotic and evil, the perfect trifecta of tyrannical, absurd, and abjectly wicked. 

Are we really supposed to take seriously the idea that the First Amendment’s protection of free speech and assembly, even if applicable to the states (which it ain’t), gives people a protected right to publicly perform sexually explicit acts? That would have been news to every American living prior to five minutes ago. As George Orwell quipped: “Some ideas are so stupid that only intellectuals believe them.” This is the kind of thing that should (and in a sane world would) get federal judges impeached and permanently disbarred from the legal profession. 

The Incorporation Doctrine is a pernicious lie. It has no constitutional basis. It is a weapon used to subvert and pervert the U.S. Constitution, and it should be rejected as the intolerable tool of tyranny that it is. Federal judges don’t write the laws of Tennessee – we the people do. Our legislature passed the A.E.A. and our governor signed it into law because we the people demanded that they do so.

²See page 39 of Parker’s obiter dicta.

In the Declaration of Independence, Thomas Jefferson declared that the just powers of governments come from “the consent of the governed.” It is time that we the people of Tennessee make it unequivocally clear that we do not consent. We do not consent to perverts of any persuasion grooming our children. We do not consent to public displays of lewd or promiscuous sexual behavior. And we do not consent to a Federal judge unconstitutionally overturning our legitimately enacted laws and statutes. 

Tennessee’s response should be threefold: 

First, Tennessee should invoke her 11^th Amendment right and refuse to be sued in Federal court – she does not consent. 

Second, Governor Bill Lee, Attorney General Jonathan Skrmetti, all county sheriffs, district attorneys, city mayors, police chiefs, and various other state and local officials should enforce the Adult Entertainment Act as if the federal court ruling never occurred, because, constitutionally speaking, the Federal ruling never did occur. 

Third, the governor and legislature should make it unequivocally clear that any attempt by federal law enforcement to impede, harass, or arrest state, county, or local officials for enforcing the A.E.A. will be met with the immediate arrest and deportation from the state of all federal L.E.O’s so engaged. 

One of Tennessee’s finest sons, Davy Crockett, famously remarked: “Be always sure you’re right – then go ahead!” Both morally and constitutionally, Tennessee is right, and – without blush or apology – she must go ahead. 

About the Author: Ioannes Xaverius is an outraged Tennessean who loves his State and people.