Past or Future?

I have a brand new game for you this week. You'll be able to enjoy this for years to come.

It's called Flummox the Founding Fathers (or FFF).

Being Nostradamus or a Founding Father couldn't have been easy. There are so many things you had to anticipate. Yet somehow they managed to do it.

All we modern types have to do is figure out what they meant.

To play, analyze a case before the U. S. Supreme Court and see if you can guess how the court's oracles will use FFA (Founding Father Analysis). The player who comes up with an answer closest to the Supreme Court's answer wins (and just may be a future justice).

I have a good one for you to get started on. The case is Astrue v. Capato in which the court must decide whether a child conceived after his father died is entitled to Dad's Social Security benefits.

I know what you're thinking: necrophilia.

But, no, that's not what happened here. That would have been too easy - they probably had lots of necrophilia back in the 1700s.

It seems that the late father deposited some sperm at a fertility clinic and his widow used it after he died.

If only there were Founding Father sperm around somewhere so we could clone those guys and get the right answers.

This is not an impossible challenge. Just remember it was only last January when the Supreme Court, in United States v. Jones, called on the founding fathers to decide whether the police could use GPS tracking.

There may not have been any GPS or cars back in the Revolutionary era, but there were cops and warrants.

So just because there weren't sperm banks and Social Security back then doesn't mean there isn't an answer for us. After all, they did have Thomas Jefferson and lots of children so they must have been thinking about these issues.

Come on. If Justices Scalia and Thomas can come up with this stuff, so can you.

ANOTHER WAY OF THINKING. I know FFF is a lot of fun - and a good predictor of what the court will do - but I think it's the wrong approach.

After all, the Founding Fathers couldn't have anticipated the problems we face today. What we need to do is anticipate the problems of the Unfounding Children.

Hence, the UCC - the Unfounding Children Conjecture.

If the right wing looks to the past, the left wing must look to the future.

But you're thinking, is this not hypocritical?

After all, you're one of those guys who scoffs - scoffs! - at the concept of mind-reading old dead guys. How can you advocate mind-reading young unborn not-alive guys?

I can because we have something that the Founders didn't have: science fiction!

This posthumous child case may seem simple, but what happens if a former child bully trying to take over the world steals your embryos and tries to turn them against you? Who's responsible for those kids?

If this seems unlikely, you're not up on your Orson Scott Card.

Or what if a distortion in the space-time continuum causes a rift into an alternative universe and suddenly you have children without ever having sex?

It could happen.

This may seem daunting - there's an awful lot of science fiction and an awful lot of future out there -- but the answers may be easier than you think. After all, wise men and women of the future could time travel back to Supreme Court chambers after oral argument and offer advice.

Or ... wait, I have it! .., they could time travel back to the 1700s and pretend to be Founding Fathers so they can give us guidance in the 21st century.

It all begins to make sense.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit