A Phantom Constitution
Feb. 27, 2025
Host: Hon. Sam Rohrer
Guest: David New
Note: This transcript is taken from a Stand in the Gap Today program aired on 2/27/25. To listen to the podcast, click HERE.
Disclaimer: While reasonable efforts have been made to provide an accurate transcription, the following is a representation of a mechanical transcription and as such, may not be a word for word transcript. Please listen to the audio version for any questions concerning the following dialogue.
Sam Rohrer:
Hello and welcome to this Thursday edition already of Stand In the Gap Today and it’s our bimonthly emphasis as well on the Constitution and American history with constitutional attorney, author, historian, and public speaker David New Now, if you’re listening to this program today, perhaps for the first time, welcome aboard. We’re glad that you are with us, and if you are like millions across the globe who according to the communications we receive, listen faithfully and try never to miss a day. Thank you as much also for choosing to make this program an central part of your information and your day. It’s our purpose here, our prayer and our commitment to you that in all things here at a PN, that whether that’s on the stand in the Gap today daily program or our weekend program or our minute program or our weekly 30 minute TV program in whatever venue or means, it is that we bring to you a practical and usable application of biblical principles.
Because every application, right application of biblical principles is useful. It’s never our goal to tell you what to think, but how to assist those who fear God to better know how to think biblically as we bring the newspapers, we say oftentimes in one hand, in the Bible, in the other, then through the lens of a comprehensive biblical worldview to consider what is happening through the filter of scripture that tells us all we need to know to accurately consider what is happening. Now that’s our goal, and though I know you know this, I wanted to repeat it, not just for those of you who may be listening new, but to reassure all of those who have been so faithful and to remind our entire a PN and stand in the gap media team remind ourselves why we exist. Now that being said, while there are many things we could address on this program and this focus today, I tried to bring matters of the Constitution and where possible to intertwine some American history as well.
And that is a combination that David knew who’s with me today, permits that to take place because he’s really blended so well into that entire space. Now in our nation, because of the legal primacy of the United States and state constitutions, we know that every person elected locally or nationally or officially appointed by elected leaders like governors or presidents as well as judges, including members of the US Supreme Court, all of them must take an oath to obey and to defend the constitution. That is the one thing that our founders believed that if it were done, and I believe as if it’s done and done honestly keeps everything united. But sadly, we also are continually reminded that vast numbers of people routinely violate their oath of office, and that includes judges. Judges can sometimes will violate the oath by doing a number of things. Add clauses is one of them to the constitution that they’ve swarm to uphold and defend phantom clauses, and that includes the US Supreme Court.
Today, David and I are going to discuss just an occurrence where the US Supreme Court did just that and we’re going to share both the clause concept, the cultural conditions surrounding this unconstitutional action and then actually how it came into being. And then we’ll close with a consideration of some foundational principles that pertain to national blessing for any nation frankly around the world that chooses to put it into effect. The title I’ve chosen to frame our conversation today is this, A Phantom Constitution, the story. And with that, David, welcome back. Always glad to have you on board, brother,
David New:
It’s always so nice to be with you and everyone with us. Blessings to everyone.
Sam Rohrer:
David undergirding the focus today, get right into it of the Phantom Clause as created by the US Supreme Court, which in effect does create a phantom constitution and we can define that. But based on that, I want you to come off of an article that you wrote over 10 years ago that was actually published in the Washington Times and it lays down the foundation for our discussion today. What was this article? Tell us about a little bit and what prompted you to write it.
David New:
Yes, in 2013 in the month of March, the Washington Times published my article about this phantom clause in the Constitution. There is literally such a thing that the Supreme Court is made up. The title of the article is New Proposition eight Cases based on a Phantom Constitutional Clause. The title again is new, I don’t know if they mean new article or New David, but whichever new proposition, eight cases based on a phantom constitutional clause. And what I do in that article is I explain that I make a prediction in March that the Supreme Court is going to use a non-existent clause in the US Constitution to make homosexual marriage federally recognized that the federal government will recognize not the states, the states don’t become forced to accept gay marriage until 2015. But in the month of March I wrote this article and in the month of June of 2013, just three or four months later, the Supreme Court issued a ruling. And in that ruling they did recognize gay marriage for federal law purposes
Sam Rohrer:
And that we’re going to go into ladies and gentlemen more specifically. So this has a history and I think you’re going to find the entire expose today. Very interesting. Dave, let me just ask you this, just I guess for the sake of a broader understanding, you’re going to look at, and today we’re going to look at this one specific phantom clause as you’re calling it, and we’ll explain that, but just for the sake of greater knowledge, do you know of any other phantom clauses perhaps that the court put into effect that we’re not going to talk about today? But is this the only one or are there other ones as well that you could name?
David New:
Yes. The First Amendment was amended, shall we say, in 1940. Practic, nobody knows that the First Amendment was amended, but it was, there are 45 words in the First Amendment and in 1940 the Supreme Court added three words to the First Amendment, words that are not there, phantom words, and the First Amendment text that the Supreme Court uses says Congress and no state and no state shall make any law respecting and establishment of religion. So they amended the First Amendment in 1940. They used the 14th Amendment as an excuse to do it, but of course the whole thing was a complete joke and a farce.
Sam Rohrer:
Okay, ladies and gentlemen, you got idea. So what we’re going to talk about here is not the only time that the court actually added something, which became a determinant of law, but it never existed. That’s why we call it a phantom clause. We’ll come back, we’ll talk about the cultural and the political conditions. Well, if you’re just joining us today, this is our bimonthly emphasis that means every other week and we do it on Thursdays. And our focus is the Constitution intertwining American history as well. And the recurring guest that is always with us on this focus is constitutional attorney David New, he’s with me today. And the theme that we’ve selected is this. The title I’ve given is a Phantom Constitution, the story, so we’re trying to unfold the story, we’re going to get into it. David established in the last segment that there is more than one occasion when the US Supreme Court, which is our focus today, the US Supreme Court actually took an added to the Constitution, yet really it did, which then changed their rulings and frankly have changed the entire culture and the laws of the land.
So it’s a big deal even though they’ve all taken an oath to support and defend the Constitution, that’s a real problem that we have in these days and so much what we’re seeing as a result of people violating the oath. Now, that’s not our focus, but let me get into it. The background on this when considering culture changing or law altering decisions, and our Supreme Court has really done a lot of those because everything they do is a big issue. Whenever we consider through history, there’s always a backstory a bit to it. We want to show that as we presented in a recent standing the Gap today program, while during the last, for instance Biden and Obama and Clinton administrations in particular, we highlight the fact that decisions from a worldview perspective were driven primarily by ideology. They were ideologically driven and of course you can see where it’s driven is right into the ground, but driven by ideology where according to their thinking rate makes rate.
So if you’re in a position where you can make it happen and you do it, and that’s why you have so many of the things that are the weaponization, for instance of government comes out of that mindset. The current administration though, is driven not so much by that, but by pragmatism and human thought, and that drives decisions and policy. Now, in the end, as we’ve talked about so many times, it’s a person’s worldview that ultimately dictates their actions. And in the end, if you know the worldview, you can pretty accurately predict the ultimate outcomes, though the temporary in the midst of the process like we’re in right now, the changes that are happening can swing and swing wildly, but the end, if you know the worldview, you know how it’s going to generally come out, or at least you should be able to. And whether policy and choices are driven primarily by ideology or pragmatism, cultural conditions either justify the decisions in either case or most certainly reflect the decisions which makes sense. Okay, so David, a little bit of a background, what was actually happening in 2013, because I understand that the Defensive marriage Act, which is where you’re going to focus on here, was being attacked in New York state and federal court. But here’s the question, can you describe a bit more of the cultural and the legal conditions in place at that time that gave rise to defensive Mary Jack in itself and President Clinton’s reason for at that point pursuing its passage? Lay that down first and then let’s go into it further.
David New:
Surely in 2013, the activist courts throughout the United States and many places in the world were very much on the gay marriage LGBT bandwagon, very, very much. And the courts started to issue judgments stating that gay marriage is now legal and their state estate, and this is what was happening in 2013 in the case that we’re talking about a phantom clause in the US Constitution, one that does not exist was used to attack the institution of marriage and to make same-sex marriage legal for federal purposes. Now, in the beginning when these courts were starting to do these things, there is such a thing called as the full faith in credit clause in Article four of the US Constitution, which says, if you get married in Tennessee and you move to California or vice versa, the state that you move into has to recognize your marriage. And it not only applies to marriages, but it can apply to, say for instance, a creditor.
You owe somebody a million dollars and you live in Kentucky and you take off and go to Florida, they can take that judgment in Kentucky, file it in a Florida court, and you still owe that million dollars even though you’re in Florida. But the judgment was given in Kentucky, so the full faith in credit clause was the key. Now this lady, she got married and she was a lesbian and she got married a homosexual marriage in Canada, and what she wanted is that she wanted to make sure that she could get a tax deduction because her homosexual lover died. So here’s the problem. You get married in one state that recognized the same sex marriage, say like Hawaii was one of the first or Massachusetts, and then you move to Texas under the full faith in credit clause, Texas must recognize that marriage, that homosexual marriage. But President Clinton in 1996 signed a law called the Defense of Marriage Act, and that law said if there’s a gay marriage in another state and they move in your state, that state that they moved into has the option of whether to recognize homosexual marriage or not. And that was the target in 2013,
The gay community wanted the federal government to recognize gay marriage, homosexual marriage that had to be done first and get rid of DOMA defensive Marriage Act. They had to get rid of DOMA first before they could have same sex marriage declared legal throughout all 50 states.
Sam Rohrer:
Okay, David, that’s a great background, but you alluded to the fact that there was a marriage in Canada, but you also indicated that this was perhaps more to do with money, was the motivation here for this woman, it looks to me sounds more like it’s a tax issue than she was going after a marriage issue. And as I looked at some other information, it appeared that she was looking to get a tax deduction of a rather substantial amount, several hundreds of thousands of dollars. So was this change actually precipitated more because of money than it was because of ideology and the fact of marriage?
David New:
Well, Edith, her name was Edith Windsor and she married her homosexual lover in Canada. And on a federal tax return because lover died, she would, if the federal government would recognize her same sex marriage, she would be able to get a refund of $363,053. So she is motivated partly by money, but the real business is almost sexuality and same sex marriage, that’s number one on her list. She even moved to Canada to get a homosexual marriage. So now she has to find a way to hit the federal government so that the Supreme Court can hear her case. And one of the best ways to do that is for her to say, Hey, if the federal government would recognize my marriage, I would get an additional refund of $363,000. And that’s what she walked into court when she went to the US District Court in New York.
She won when she went into the US Circuit Court for her case, she won. And each of those courts, these courts use this phantom clause that doesn’t exist anywhere in the US Constitution, basically the Fifth Amendment, and she won. And now the issue is will the Supreme Court, will the Supreme Court recognize it? So what she’s after is section three of DOMA section three of Defensive Marriage Act says, for federal purposes, marriage is limited to one man and one woman. She says, no, no, no, no. Stop that. I want a bigger tax refund. I want you to recognize my homosexual marriage. And that’s where it was.
Sam Rohrer:
Okay, we got about a half minute left before we go into the break. So just take us right to the quick the bottom and then we’re going to go back and study the history of this phantom clause in the next segment. But what was the ultimate legal outcome of Edith Windsor’s suit? How did the whole thing actually end up?
David New:
What happened was when she went to the US Supreme Court in the month of June, they fulfilled my prediction that the Supreme Court would use a phantom clause to declare same-sex marriage recognized for federal purposes so that on tax forms you can put woman and woman man and man and all this kind of stuff. She won the case and as a result, the DOMA section three that referred to the federal government, that part of DOMA fell once that happened. The foundation is late for all 50 states, not just the federal government, but all 50 states to take and accept they’re being forced to accept same sex marriage.
Sam Rohrer:
Okay, ladies and gentlemen, so you get that our theme today is this, A phantom constitution, a phantom clause, which we’re going to learn in the next segment what that was, how it came about, and when it came about because that’s what the Supreme Court used to do. What was done in this case back in this moment? Well, David, as you’ve shared so far, there was the Defense of Marriage Act, DOMA passed by Congress under the urging of then President Bill Clinton and signed by Bill Clinton in 1996. So ladies and gentlemen, you get a framework of what we’re talking about. That’s the time 1996 DOMA was signed and this law was passed to preserve the right of one state to deny or accept their choice. It was state’s provision to deny or accept the recognition of a same sex couple union granted by another state.
In this case, it was this woman, Edith Windsor, who had been married to her same sex partner in Canada. So that was in 2013. David, you talked about in that timeframe. Anyways, she sued to have her same sex union recognized, but as you stated, there was probably a dual purpose. One was that if it happened, she would stand to gain about over $350,000 in taxes that she had claimed. That was a big deal, but there was the ideological purpose as well, and that was to overturn the law relative to man and woman marriage. So ideological and financial. But that brings us to the matter then of how the US Supreme Court actually decided the case and the Phantom Clause you’ve referred to and we’re talking about that you wrote about and actually predicted in the 2013 editorial that the Washington Times carried that you said may well be the piece of which the US Supreme Court would cite, and you ended up being totally right. So here, let’s get into it. Now, what was this Phantom clause cited by the US Supreme Court and when did it come into being? Why and how did it come into being? How was it birthed? This Phantom Clause?
David New:
Okay, again, the Defense of Marriage Act gave the states the option of whether to accept or reject gay marriage in their law, in their state. And it also in this case, which is what this case is about, it also said that for federal purposes, marriage is limited to one man and one woman, which means for tax purposes, if you’re going to file married filing jointly, you get a large deduction than when you’ve got two single people doing it. So that’s what she’s after. She’s after this married filing jointly on her tax return so she can get an extra $363,000. Okay, and ladies and gentlemen, there is no question that what was happening here was extremely destructive. If you want a strong nation, you’ve got to have a strong family. The strong the family, the stronger the nation, the weaker the family unit, the weaker the nation.
If you want to have a strong family, you’ve got to have strong marriage laws, strong marriage laws, build strong families, build strong nations, weak marriage laws, build weak families and build a weak nation. And they basically, in 2013, the Supreme Court made a death attack against the institution of marriage, which is a divine institution. What is the Phantom Clause? This is what the Phantom Clause is called. It’s called the Fifth Amendment’s Equal Protection Component. Let me repeat it. The Fifth Amendment’s equal protection component. Conversely, you could call it the equal protection component of the Fifth Amendment, the equal protection component of the Fifth Amendment. It doesn’t exist. If you read the Fifth Amendment, there are 108 words in it. There is no such thing as the word equal in the Fifth Amendment. There’s nothing about a protection in the Fifth Amendment. There’s nothing about a component in the Fifth Amendment.
It is a complete fantasy. It doesn’t exist. It’s a phantom clause. So the Supreme Court used a phantom clause to force the federal government to accept gay marriage so that this woman could have married filing jointly and get a larger deduction. Okay, when did this start? When did it start? It’s been around for quite some time. It started in 1954. In 1954, the Supreme Court ruled in a case called Brown versus Board of Education that segregated public schools violate the equal protection clause of the 14th Amendment. Beautiful. I agree with the case. I support the case. There’s no need for racial segregation. It’s ridiculous. Black children, white children, whatever color they are, they can all learn together and they all should have the equal benefit of education, whatever the state has to offer them. Okay, so that’s what Brown versus Board of Education was about.
The various states that were segregating their kids, the Supreme Court used the 14th Amendment to deny segregation in the public schools. Well, they got a little problem. What about Washington dc? Washington DC was segregating many public schools on the basis of race. What’s the problem? Well, there’s nothing about equal protection that you could read in the 14th Amendment. The 14th Amendment talks about equal protection, but there’s nothing about that in the Fifth Amendment or anywhere in the Bill of Rights. If you look at the 14th Amendment, it says, no state shall deprive any person of life, liberty, or property without the due process of law that’s having a fair trial nor deny. Here’s the key phrase, nor deny any person within its jurisdiction the equal protection of the laws.
Okay, that’s in the 14th Amendment. It said no state. So that applies to all 50 states. The problem is when you look at the Fifth Amendment, there’s nothing about an equal. The word equal doesn’t even appear. It’s nowhere. It says, for example, in the Fifth Amendment, nor to be deprived of life, liberty of property without due process of law, but it doesn’t have the clause about equality. So what does the Supreme Court do? They ruled in 1954 and Brown versus Board of Education, the states cannot segregate their public schools on the basis of race. The very next case after Brown versus Board of Education is a case called Bowling versus Sharp. In that case, the Supreme Court created this phantom clause called the Fifth Amendment’s Equal Protection Component, which doesn’t exist. What they did is they took the word equality from the 14th Amendment and pretended it’s in the Fifth Amendment.
And that meant that the public schools, which Bowling versus Sharp was about in the District of Columbia, they can’t segregate their public schools either. Now, if you read Bowling versus Sharp, you’ll never see what I just said is in there. They never say it. They never say the Fifth Amendment’s equal protection component. The Supreme Court didn’t put words of this phrase until later on, but that is what was going on in bowling versus sharp right after Brown versus Board of Education. They eventually put words to it. They eventually described it. The Fifth Amendment’s equal protection component. Well, that’s why the US District Court and New York used it. That’s why the US Circuit Court used it. And now the US Supreme Court is going to use this phantom clause to strike down one man and one woman marriage only for one man and one woman for federal purposes, they’re going to use this bogus phantom clause that doesn’t exist. You cannot find the word equal protection or component anywhere in the Fifth Amendment, 108 words. Best of luck if you can find it.
Sam Rohrer:
David. I look at that and I say, well, everybody’s well aware of phraseology it’s used, the weaponization of the political process. Basically in this case, ideology of the court caused them to make up phantom clauses to justify what they were wanting ideologically, which then meant they also were violating their constitutional oath. This is a big deal, isn’t it? Because this now becomes a precedent, as you say, and now all of a sudden that ripple effect goes all across the matters of law and involves a whole lot more than just that matter of marriage, doesn’t it?
David New:
Basically, it means that the people have lost control of our constitution. If the Supreme Court can make up clauses that are not there and use that to attack whatever they want to attack or sustain whatever they want to sustain, then we’ve lost it. These people basically, or these nine people become an annual constitutional convention and they can make up anything they want.
Sam Rohrer:
There you go. Ladies and gentlemen, David, we’re out of time, but ladies and gentlemen, David used the word, if they can, I’m going to say because they did things happen that are not constitutional and you wonder how we’re giving you one reason how. All right, our theme today has been, if you’re just joining us, this is our last segment here, only just a few minutes left in the program today, but if entitled this Today A Phantom Constitution and we’re talking about a phantom clause. 1954 goes back into that timeframe and David just described that in the last segment to which the Supreme Court then utilized this thing. They called it Fifth Amendment provision, which does not exist. We chatted about that. They made up something that did not exist to advance a politically correct ideologically bound position, this case about marriage and by so doing overturned God’s definition of marriage and made it okay and equal for man to marry man or woman, to marry woman, which is anathema to God’s standards.
But they did it. And now many, many things have changed because they did that and they had to do that in order to do, let’s put it that way. They had to violate their constitutional oath. Same thing a person in Congress or any state legislature when they vote to advance anything that is against God’s definition of justice or morality, they have to vote against their oath and violate their oath because the constitutions, as we have established, we have them mirrored in principle the truth of God’s definition of morality. So they violate their oath serious matter. But anyways, let’s conclude this a little bit, David, and shift a bit in this regard because when it comes to nations now America where we’re focusing on, because we’re here, most of our listeners are in America, not all many are listening in Africa now and other places across the country because this program is being carried there as well.
But they look to America and they see what’s happened here and it applies to them. So sometimes the question arises, ladies and gentlemen, that is this, are there identifiable biblical principles which can determine not the full degree, but at least a degree of national blessing that comes as a result of governmental, judicial, or legal actions or decisions such as what we’re talking about today? David, why don’t you take off first and then I’ll conclude in it. But here’s my question to you. We don’t have the time and the purpose of this program was not to cover the entire aspect of how God raises up nations, how blessings come, how judgment comes, why some nations have been raised up and now they disappear from Earth and all of that. We don’t have time to get into all of that. We cover a lot of other programs. But for instance, you believe and have shared with me that Psalm 33 in verse 12 for instance, teaches that nations like America, which has experienced much blessing, can be anywhere in the world and see God’s blessing if it honors God. That is a very big principle. Share your thoughts on that a little bit.
David New:
Absolutely. And just very briefly, I’m hoping, and many Americans are hoping that the US Supreme Court, the one that we have now will reverse all of these things that were done about gay marriage reverse 2015 that made it binding in all 50 states, reverse the decision in 2013 and restore one man, one woman for federal law purposes. So we can pray to God that will happen. Now, the Bible teaches that any nation that honors God can have spiritual and material blessings beyond imagination. This country has so much spiritual wealth, it also has so much material wealth. This can be replicated anywhere in the world. You can have an America in Africa, you can have an American version in Asia or in South America. You can have, we’re not talking about the name America, but something that has been blessed by God like America has been.
This can be anywhere. There are three basic steps for that to happen in my opinion. Step number one, honor God. That’s Psalms 33 12. Blessed is the nation whose God is the Lord. Step number two, honor the Jewish people honor Israel, Genesis 12, three, and I will bless them that bless thee and curse them that curse thee. And in these show, all the families of the earth, be blessed. You want to get on God’s good side, get behind Israel, get with the Jewish people, stand up for the Jewish people, defend the Jewish people. Number three, step three, Leviticus 25, 10. Proclaim liberty throughout the land. Whether you use a constitution, whatever you want, you just make sure that that is based on liberty of the individual. If you honor God, honor Israel, and proclaim liberty throughout the land in a constitution, you could have an America too.
Sam Rohrer:
And David, those are excellent. And ladies and gentlemen, just have a couple minutes left. What David shared. I would encourage you to go back and read that entire chapter of Psalm 33 in particular, it lays out a lot of provisions there to nation at large. Obviously the Abrahamic conditional blessing, bless Israel, curse Israel, we talk about that a lot. David, you mentioned it, it’s wonderful. And then proclaim liberty throughout the land. And we’ve talked about that, ladies and gentlemen, Liberty, what is that liberty? Liberty comes from knowing Jesus Christ being set free from the bondage of sin. And so entire programs have been done on that. But those three in any nation, any people within a nation, but any nation can experience a degree of that blessing. How much blessing, how much prosperity, how much honor, how much greatness. Well, that part is up to God, but certainly these three are required.
Now I’m going to share just a couple David that I’m going to add onto this, ladies and gentlemen. And that is this. These provision we talk about, and I have three as well. First provision is this, in the end, before a nation even chooses to do what is right, God does raise up nations and leaders of nations. We know that. And that is the whole aspect of Acts chapter 17, where God established a nations from the beginning of the world and their boundaries were defined and he has a purpose. So God raises up nations and leaders. God also brings down nations and leaders. We know that. And the third is this. God makes it clear that true national greatness and prosperity that comes with it, health and security from the enemy and all of those things are conditioned upon two things. And you can find it at the very first verses of Deuteronomy, chapter 28, Israel is the pattern.
Our founders look to that as a pattern. And it’s two things. Fear God, number one, that’s same as David, you said, honor God, fear God and secondly, obey and implement God’s commands. And when that is done, and I’m reading from Deuteronomy 28 right now in verse two, it says, and if that is done, God will set the high above all the nations of the earth. That was to Israel, but it certainly hasn’t applied to America. And he says all of these blessings, and he names them 15 verses shall come on the if you harken to the voice of the Lord your God. So when we do that, which God says blessing will come when we through political correctness, violate our oath and turn our backs on God, judgment comes from God. That’s pretty simple. All of this is here. It applies to any nation any time for us as a nation. The sooner we return to what God says, the better off we will be. Thank you, David New for being with me today. Great program, great information. Ladies and gentlemen. Thank you for being with us. Lord willing, we will see you here tomorrow.
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