The State of Tennessee recently passed a law entitled The Adult Entertainment Act, which has commonly been referred to as “the drag show ban.”1 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 1st Amendment’s free speech protections as incorporated to the States through the due process clause of the 14th Amendment.2 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 did so 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. The absurdity, tyranny, and abject wickedness of this ruling are so blatantly obvious that writing them out seems insulting to the reader. Anyone who thinks that the Supreme Court will fix this needs to remember that it was Trump-appointee Neil Gorsuch who penned a ruling (Bostock v. Clayton County, GA) declaring that trans women (biological men) have the same rights and protections as women under Title VII (and, by logical implication, Title IX). The Federal court system is not the tool with which to protect our civilization or reclaim our rights and liberties. The answer, now as in the past, is the nullification of all unconstitutional usurpations of power from the States and the people.
This has been explained in detail and at significant length elsewhere, but it is appropriate to summarize the following points here as a reminder. 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 14th 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?
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. 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 behaviour. And we do not consent to a Federal judge unconstitutionally overturning our legitimately enacted laws and statutes. Every citizen of this State should contact the governor, the State attorney general, county sheriffs and district attorneys, and city mayors and police chiefs to request and demand that they enforce the Adult Entertainment Act as if the Federal court ruling had never occurred – because, Constitutionally speaking, the Federal ruling never did occur.
Ioannes Xaverius is an outraged Tennessean who loves his State and people.