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Skip to comments.Freeper Investigation: Original Intent and Constitutional Jurisprudence
Posted on 09/18/2005 9:30:23 PM PDT by betty boop
Freeper Investigation: Original Intent and Constitutional Jurisprudence
by Jean F. Drew
English and Anglo-American laws core principle is the opposition to abusive power as exercised by the state. As Dan Gifford writes in The Conceptual Foundations of Anglo-American Jurisprudence in Religion and Reason,
The law is not the law regardless if it be good, bad, or indifferent. There is a higher moral law, originating within ancient Jewish law, which requires individual responsibility for opposing evil and promoting goodness. It is from this basic tenet that English law and Anglo-American law embody the following principle: The individual has rights against the state .
The danger posed by the usual suspects in government for the sake of power is obvious. However, not as obvious is the more insidious danger posed by a list of usual suspects claiming to be [societys] defenders . Their attacks on God, traditional Judeo-Christian morals, the Calvinist concept of conscience, republican virtu, and Aristotelian reason or logos the five essential elements that make our system work as obstructions to social progress have been devastating .1
Without doubt, God, traditional Judeo-Christian morals, the Calvinist concept of conscience, republican virtu, and Aristotelian reason or logos informed the worldview of the Framers of the Constitution and constitute that documents spirit, meaning, philosophy and vitality.
Russell Kirk corroborates this understanding, stating that the roots of American order trace back to four historical cities: (1) Jerusalem, in both the Israelite and Christian developments; (2) Athens, with its classical view of man as a thinking animal who possesses reason and soul; Rome, for the idea of republican virtu personal self-restraint and direct participation in the governance and defense of the state; and London, for its concepts regarding the necessity of restraining monarchical power vis-à-vis the subject in the interest of preserving the public good of individual liberty. 2
Thus the Constitution is an extraordinarily conservative document, given its roots in a much older tradition, writes Stephen Tonsor. Its world view is Roman or Anglo-Catholic; its political philosophy, Aristotelian and Thomist; its concerns, moral and ethical; its culture, that of Christian humanism. 3
The problem with the constitution nowadays is that these ideas no longer inform the worldview of many Americans, in particular the cultural elites who sit on federal and state benches, who man the federal bureaucracies, staff the professoriate, and run the organs of public communications (i.e., the so-called mainstream media). All these constituencies, moreover, are effectively unaccountable to the people whom they purport to serve.
In light of breaking events the recent ruling of a federal court in California that the Pledge of Allegiance is unconstitutional because of its under God language, the recent New London eminent-domain decision of the Supreme Court, and two Supreme Court vacancies (with possibly more to come within the tenure of the Bush presidency) as well as long-standing public quarrels over the meanings of e.g., the Second, Tenth, and Fourteenth Amendments, we thought it would be useful to inaugurate a Freeper Research Project into theories of the Constitution, then and now; i.e., the original intent of the Framers vs. modern prudential and ideological constructions. In particular it would be useful to explore the roles of all the players in a constitutional system based on the separation and balance of powers, to see how well that concept is working nowadays.
Or not, as the case may be. And if that is the case, then to ask: Why not? What has gone wrong such that, e.g., federal judges routinely feel free to legislate their ideals of social progress from the bench?
I thought Id get the ball rolling with a piece on the cultural component of such questions. Im sure my thoughts may prove controversial to some of my Freeper friends; for I intend to show that the single most influential cause of current-day constitutional chaos is the breakdown of a common understanding of God and man and of their mutual relations. It is my view, however the only view that I can relate, based on my observation, experience, and the indirect sources that further inform the present state of my knowledge and anyones free to disagree with it. I just hope we can all be civil and respectful when/if we do disagree.
The point is, I cant do your seeing for you anymore than you can do my seeing for me. Under the circumstances, it seems to me the best course would be to simply compare notes and see if we might learn something from one other.
My friend YHAOS writes: The Founders bequeathed to their posterity rather a unique philosophy, not only of government, but of human relationships. Indeed, YHAOS; the Framers view of human relationships was predicated on the understanding that all men are created equal, and thus all have dependence on a creator. Further, because they are equally the creations of one Creator, all men share a common humanity that effectively makes them brothers. All men are created with possessing reason and free will as a natural birthright, and are endowed by their Creator with certain inalienable rights, that among these are life, liberty and the pursuit of happiness. All men are equal before the law, while constituting the sovereign We the People connoting one single community who delegate a very few existential powers (29 by my last count) to the government, and retain all others unto themselves.
YHAOS continues, It was a philosophy that was greeted with disfavor by all the rulers of the world the moment they were exposed to it, because it left their rule to the sufferance of their subjects, and eliminated their ability to rule as they saw fit. They hated it then, they hate it today. This philosophy, so hated by the rulers and other elites of the world, is found and best expressed in the words of the Founders and of others who were most closely associated with the philosophy of Natural Law and with the events which occasioned the creation of the Declaration of Independence and of The Constitution.4
Indeed, YHAOS. Those who would rule dont much care for this sort of thing as a rule .
The spirit of liberty that informed the American Founding whereby the role of the state was to be severely delimited and constrained was brilliantly expressed by Trenchard & Gordon in Catos Letters (~1720):
All men are born free; Liberty is a Gift which they receive from God; nor can they alienate the same by Consent, though possibly they may forfeit it by crimes .
Liberty is the power which every man has over his own Actions, and the Right to enjoy the Fruit of his Labor, Art, and Industry, as far as by it he hurts not the Society, or any Member of it, by taking from any Member, or by hindering him from enjoying what he himself enjoys.
The fruits of a Mans honest Industry are the just rewards of it, ascertained to him by natural and eternal Equity, as is his Title to use them in the Manner which he thinks fit: And thus, with the above Limitations, every Man is Sole Lord and Arbiter of his own Private Actions and Property5 .
In short, in the early eighteenth century, there was a cultural consensus in England and in the Colonies that it is the GodMan relation from which the just relations of man with his fellow man flows that (not coincidentally) constitutes the limit or check on state power and authority. The Constitution itself epitomizes and expresses this consensus.
So its hardly surprising that, as YHAOS continues, It was a philosophy that was greeted with disfavor by all the rulers of the world the moment they were exposed to it, because it left their rule to the sufferance of their subjects, and eliminated their ability to rule as they saw fit. They hated it then, they hate it today. This philosophy, so hated by the rulers and other elites of the world, is found and best expressed in the words of the Founders and of others who were most closely associated with the philosophy of Natural Law and with the events which occasioned the creation of the Declaration of Independence and of The Constitution.6
Indeed, YHAOS. Those who would rule dont much care for this sort of thing as a rule . And I am particularly intrigued by your notice of the other elites.
These other elites are informed by other notions that were altogether foreign at the time of the American Founding, and for more than a century thereafter. These notions are a specifically German cultural import from Hegel, Nietzsche, Marx & Co., a going (and growing) concern since the mid-nineteenth century.
All three men were obsessed by power. Hegels model of the ideal state was Prussia, which was authoritarian and repressive. He worshipped Napoleon as a new World Savior. All three men wanted to kill God. This last, of course, is required for the free exercise of an unconstrained Will to Power: With God around, plans for constructing Utopia could never come to fruit. So they all decided He needed to be bumped off in order to clear the decks for a reconstruction of the world and human history, in order to perfect future history. Thus history as we know it must end.
And as it turns out, history under God becomes a dead letter with His demise. Then and only then can self-appointed Great Men assume the divine rule and enterprise with a free hand, starting over from scratch, as it were. Hegel and Marx both apparently believed that they could just start from nothing and, by the use of pure Reason, construct ever more perfect worlds, correcting all the imperfections that God left in His Creation, which is now to be happily Over, dispensed with. Men or at least some men have become self-divinized. A New World is a-borning.
We are speaking of the construction of progressivist utopias here.
Now the meaning of Utopia a neologism of Thomas More means Nowhere. Utopia is a model of a perfect society that cannot be realized because an important sector of reality has been omitted from its construction, but its authors and addicts have suspended their consciousness that it is unrealizable because of the omission.7 As the greatest English-speaking poet of the twentieth century put it:
They constantly try to escape From the darkness outside and within By dreaming of systems so perfect that no one Will need to be good .
But the man that is will shadow The man that pretends to be. 8
The omitted sector of reality is precisely the spiritual sector, constituted by the relations of God and man the divine-human encounter that orders human souls, and from souls to societies, including political societies. That is to say, the total eclipse of the great Hierarchy of Being: God Man Society World. It seems plain to me that the murder of God involves a double homicide, one a parricide, the other a suicide .
Clearly, there was a profound sea-change in the understanding of Reality and of human self-understanding between the time of Locke and the time of Hegel. Rather than present a lengthy and probably tiresome analysis of how this noxious diremption occurred, let me just give you a sampler of how meanings central to the human person and to political society are understood these days under the respective frameworks of the Judeo-Christian/classical (JCC) worldview, and the progressivist (P) worldview.
JCC says: There is a nature of man, a definite structure of existence that puts limits on perfectability.9
P replies: The nature of man can be changed, either through historical evolution or through revolutionary action, so that a perfect realm of freedom can be established in history.10
JCC says: Philosophy is the endeavor to advance from opinion (doxa) about the order of man and society to science (episteme) 11
P replies: No science in such matters is possible, only opinion; everybody is entitled to his opinions; we have a pluralist society. 12
JCC says: Society is man written large.
P replies: Man is society written small. 13
JCC says: Man lives in erotic [faithfully loving] tension toward the divine ground of his existence.
P replies: He doesnt; for I dont; and Im the measure of man.14
JCC says: Education is the art of periagoge, or turning around (Plato). [Essentially, this means that education is the art of transmitting the greatest achievements of human intellect and culture to the next-rising generation, which, as we have already suggested above, include achievements of great antiquity. In the specific Platonic sense, this process requires a turning to the Light or alternatively, a tuning into the God.]
P replies: Education is the art of adjusting people so solidly to the climate of opinion prevalent at the time that they do not feel any desire to know. Education is the art of preventing people from acquiring the knowledge that would enable them to articulate the questions of existence. Education is the art of pressuring young people into a state of alienation that will result in either quiet despair or aggressive militancy.15
JCC says: Through the life of reason (bios theoretikos) man realizes his freedom.
P replies: Plato and Aristotle were fascists. The life of reason is a fascist enterprise.16
JCC says: The process in which the nature of man and the other participants in the great Hierarchy of Being becomes conscious and noetically articulate and luminous to the human mind constitutes the life of reason.
P replies: Reason is instrumental reason. There is no such thing as a noetic rationality of man.17
Just in case the foregoing dialog comes across as a tad too abstract, let me give an example from concrete American historical experience that fully reflects the tensions inherent in such irreconcilable differences, and get off the soap box. (Then it will be someone elses turn).
My example concerns the scope and meaning of the Second Amendment.
JCC says:
Surely one of the foundations of American political thought of the [Founding] period was the well-justified concern about political corruption and consequent governmental tyranny. Even the Federalists, fending off their opponents who accused them of foisting an oppressive new scheme upon the American people, were careful to acknowledge the risks of tyranny. James Madison, for example, speaks in Federalist Number Forty-Six of the advantage of being armed, which the Americans possess over the people of almost every other nation. The advantage in question was not merely the defense of American borders; a standing army might well accomplish that. Rather, an armed public was advantageous in protecting political liberty. It is therefore no surprise that the Federal Farmer, the nom de plume of an anti-federalist critic of the new Constitution and its absence of a Bill of Rights, could write that to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them.... On this matter, at least, there was no cleavage between the pro-ratification Madison and his opponent.
In his influential Commentaries on the Constitution, Joseph Story, certainly no friend of Anti-Federalism, emphasized the importance of the Second Amendment. He went on to describe the militia as the natural defence of a free country not only against sudden foreign invasions and domestic insurrections, with which one might well expect a Federalist to be concerned, but also against domestic usurpations of power by rulers. The right of the citizens to keep and bear arms has justly been considered, Story wrote, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.
the repository of a monopoly of the legitimate means of violence [by the state] that is so commonly used by political scientists is a profoundly statist definition, the product of a specifically German tradition of the (strong) state rather than of a strikingly different American political tradition that is fundamentally mistrustful of state power and vigilant about maintaining ultimate power, including the power of arms, in the populace. 18
P replies (actually, this is Justice William Burger, who never wrote a word abut the Second Amendment. Yet after retirement, he wrote an article for Parade magazine that is the only extended analysis by any Supreme Court Justice of why the Second Amendment does not guarantee and individual right).19
the Second Amendment is obsolete because we need a large standing army, rather than a well-armed citizenry.20 Plus we all know guns are dangerous things. Dangerous things should not be left in the hands of innocent (inept) civilians, especially when there are standing armies and organized police forces to whom we may safely delegate the use of force in our society.
To which JCC might retort: Well, whos policing the police? And what if the standing army comes after US?
On that happy note, a few last words:
Government is not reason; it is not eloquence; it is force! Like fire, it is a dangerous servant and a fearful master! George Washington
All powers granted by the Constitution, are derived from the people of the United States; and may be resumed by them when perverted to their injury or oppression; and every power not granted remains with them, and at their will; and no right of any description can be canceled, abridged, restrained or modified by Congress, the Senate, the House of Representatives, the President or any department, or officer of the United States. John C. Calhoun
The power of kings and magistrates is nothing else, but what is derivative, transferred and committed to them in trust from the people, to the common good of them all, in whom the power remains fundamentally, and cannot be taken from them without a violation of their natural birthright. John Milton
1 In Tennessee Law Review: Second Amendment Symposium, vol. 62, no. 3, 1995: 759, http://www.saf.org/LawReviews/Gifford1.htm .
2 Russell Kirk, The Roots of American Order, Washington, D.C.: Regnery Gateway, 1991.
3 Retrieved from a collection of aphorisms Ive been compiling for many years. Unfortunately, at the time I found this one, I was not in the habit of recording the titles of works in which the aporism appears, e.g., in which Tonsors remark was given; and now do not remember it. (Mea culpa So sorry!)
4 YHAOS at http://www.freerepublic.com/focus/f-news/1470264/posts?page=1150#1150
5 John Trenchard and Thomas Gordon, Catos Letters or Essays on Liberty, Civil and Religious, and Other Important Subjects, Indianapolis: Liberty Fund, 1995 [1720]. Trenchard & Gordon were writing about 40 years after Englands Glorious Revolution of 1688, of which John Locke was major mentor and instigator. The Framers were well acquainted with the works of all three men, for Locke and Trenchard & Gordon were quintessential sources of the history of revolution in the British historical context; plus the philosophical/sociopolitical movements that they were describing were relatively recent from the Framers standpoint.
6 YHAOS op cit.
7 Eric Voegelin, Wisdom and the Magic of the Extreme, op. cit. The Collected Works of Eric Voegelin, p.316.
8 T. S. Eliot, Choruses from The Rock, as quoted by Voegelin, ibid.
9 Eric Voegelin, op. cit., p. 258
10 ibid.
11 ibid.
12 ibid.
13 ibid.
14 ibid.
15 ibid, p. 260 16 ibid.
17 ibid.
18 Sanford Levinson, The Embarrassing Second Amendment, Yale Law Journal. Originally published as 99 Yale L.J. 637659 (1989).
19 David B. Kopel, The Supreme Courts Thirty-five Other Gun Cases: What the Supreme Court Has Said about the Second Amendment, 2000; http://www.i2iorg/SuptDocs/Crime/35.htm
20 ibid.
Dearest sister in Christ, Im confident that well need your indispensable and ever-gracious help as co-sponsor of this Freeper Research Project .
FYI. Please join in if you have the time and interest. And if you do, please dont hesitate to ping your friends .
Bookmark for tomorrow. Looks like a good one.
It is my honor to help you in any way I can, my dear sister in Christ!!!
Very interesting! Good job! My thoughts:
Feel free to use any of the above in your final write up, please ping me when you finish!
btw, some other good quotes:
Let the general government be reduced to foreign concerns only, and let our affairs be disentangled from those of all other nations, except as to commerce, which the merchants will manage the better, the more they are left free to manage for themselves, and our general government may be reduced to a very simple organization, & a very unexpensive one; a few plain duties to be performed by a few servants.
Thomas Jefferson
If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may appoint teachers in every State, county and parish and pay them out of their public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may assume the provision of the poor; they may undertake the regulation of all roads other than post-roads; in short, every thing, from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress. Were the power of Congress to be established in the latitude contended for, it would subvert the very foundations, and transmute the very nature of the limited Government established by the people of America.
James Madison
The suppression of unnecessary offices, of useless establishments and expenses, enabled us to discontinue our internal taxes. ... The remaining revenue on the consumption of foreign articles, is paid cheerfully by those who can afford to add foreign luxuries to domestic comforts, being collected on our seaboards and frontiers only, and incorporated with the transactions of our mercantile citizens, it may be the pleasure and pride of an American to ask, what farmer, what mechanic, what laborer, ever sees a tax-gatherer of the United States?
- Thomas Jefferson (Second Inaugural Address, March 4, 1805)
With respect to a historical subject such as this, IMHO we read too many books and not enough documents. Surely, our founding ancestors would be utterly amazed to learn of some of the things they said, thought, and did.
I haven't the link, but it's easy to google: type in Constitutional Society , click on Liberty Library , and start browsing. Warning: it's addictive, you may come to hate me.
Thanks, betty, for this opportunity.
What has "gone wrong" is that there isn't any recourse for judges who are incompetent. In the real world your pay is based on your performance.
I keep hearing people squawk that judges should have a fixed term, say 10 years, so the incompetent ones can be pushed out. I have a better idea - base their pay, benefits, and retirement on their performance.
Take the Ninth Circuit Court of Appeals, for example. Three-quarters of all of their rulings are overturned. We should take away three-quarters of their pay, benefits, and retirement for the year they make the lousy rulings. That should give them plenty of incentive to make rulings based on the Constitution instead of their will.
This might interest you two.
Thank you for posting this most interesting thread!
I am interested in what has gone wrong with the First Amendment. How has freedom of religion- granted to us by our forefathers, including the rather secular Jefferson and Franklin- devolved into what seems to be becoming a godless society?
And how do we reclaim our society's values without ramming one particular set of values down people's throats with a gun barrel?
Does anyone have a source for the legend about the original draft of the Declaration of Independence reading ". . . life, liberty and property" instead of 'pursuit of happiness'?
Hi Ostlandr! I don't think that's a legend. The Framers and especially Thomas Jefferson were very heavy borrowers from John Locke who was the "father of the Glorious Revolution of 1688" as mentioned in the article at the top of this thread. Locke was a philosopher of the natural law/natural rights school. And he had seemingly concluded that inalienable rights can inhere in man only if they are endowed by a Higher Authority (so to speak). His three main inalienable rights were life, liberty, and property.
Now Thomas Jefferson was a close student of Locke. He knew everything that Locke had to say about natural law and the inalienable rights of persons. Although Locke's list survived verbatim through the first few drafts of the Declaration of Independence (co-authored by Franklin and Jay -- until those two worthy gentlemen realized that TJ was "on a tear," and so delicately withdrew into the background), Jefferson decided in the end (for whatever reason) to replace "property" with "the pursuit of happiness."
Personally, I am clueless why he would want to do that. "Property" is "concrete," tangible; and thus readily understandable by virtually everybody.
But "whut the hay" is "happiness?" You simply cannot quantify it. It might as well be a total illusion, or a chimera or unicorn flitting about. It means something different to every single human person in existence.
Truly I find Jefferson most perplexing on this point (and on some others as well). And so I gather: Not for nothing has he been called "The American Sphinx."
Thank you so much for writing, Ostlandr!
Thank you for those quotes.
My God, how far we have fallen.
Late bookmark and a bump for manana!
Ah,but is it? If the word "property" can be defined as a physical item, or items, with a verifiable market value that can be legally bought,sold, acquired, held in trust, or inherited then comes the question --- Are human beings property?
If so, then the original wording of the Declaration of Independence reading ". . . life, liberty and property" could very well have been interpreted as approving the "peculiar institution" of Slavery.
And, as we all know, Jefferson -- among many members of the Constitutional Convention -- was a slaveholder; albeit many were not, and some among them were firm abolitionists.
--Clarence Thomas, Justice, concurring, Printz v. U.S., 521 U.S. 898 (1997)
"Marshaling an impressive array of historical evidence, a growing body of scholarly commentary indicates that the "right to keep and bear arms" is, as the Amendment's text suggests, a personal right."
--Clarence Thomas, Justice, Printz v. U.S., Footnote 2.
Thanks, Star. Most interesting. I shall return after a cup or two of coffee.
Right out of John Locke, but instead of happiness, he said property. His book was mentioned often in wills, to be given to the oldest son.
This country was founded by not the eldest son, but by the younger sons who had no prospects in their homeland except the military, the sea, as a merchant, or the clergy. All inheritance went to the oldest son and he was expected to support his mother, and spinster sisters. Most of the original 13 states set up inheritance as equal between heirs unless otherwise written.
As for church and state, the constitution says the state shall establish no religion, not that we are free from religion. In England, the King was head of the Church of England, and in France, the king was head of the Catholic Church after the Pope, etc. The founders did not want a state religion, but freedom for the citizens to choose a religion for themselves, their families, and their communities.
He changed property to happiness as we had indentured servants, convicts, who could or could not own property depending on the state, and the great unwashed, uneducated tradesmen and day laborers.
Owning property was not a right, but a privilege that allowed you to vote in the general elections at all levels.
Sorry, Social Studies major showing.
Bump. If we could only find some modern politicians with these thoughts...
Add if term limits for Judges -or performance based pay
are not agreeable-- might I suggest mandatory psych evals
by a panel of three competing psychologists to be affected
once any citizen notes variance with the clear language of the written Constitution.
A very well written piece-- ThankYou-- Might I add for the
discussion -- Donald S.Lutz "the Relative Influence of European Writers On Late Eighteenth Century American Political Thought"-American Political Science Review 189(1984) p189-197 Fairly well documented source of whom our
Founders cited in their political writings.
On Second Amendment I find many of the Law Review Articles
On Each Side-Presented as appendix to Guns Crime and Freedom,by Wayne LaPierre fairly weighs more on the side
of those who understand and agree with Joseph Story on the
Second Amendment.(I prefer Story on the Constitution-but
understand there are those who follow a different hermeneutic) And I do suggest "A Familiar Exposition on the
Constitution of the United States "by Jospeh Story,Regnery Gateway 1997 from the 1859 original as must read.
Thomas Jefferson,Writings,Merrill D.Peterson Editor,Library
of America 16th printing p19-25 records the Declaration of
Independence and how it was amended,John Eidsmoe in Christianity and the Constitution does a fair job discussing Jefferson and introducing his association with John Locke.IMO It remains an open question as to why Jefferson changed the concept presented by Locke-as I have
read in Lockes treatise on government the link Life -Liberty -and Property.--But find no original from Jefferson
beyond that which was approved and reported to Congress.
and we also know that Jefferson was among those who disapproved of the slave trade -thus the memorialized excerpt from his Notes on the State of Virginia Query XVIII
"and can th eLiberties of a naiton be thought secure when we have removed their only firm basis,a conviciton in the minds of the people that these liberties are the gift of God? That they are not to be violated but with His wrath?Indeed I tremble for my Country when I reflect that God is Just :that his justice cannot sleep forever... The spirit of the Master is abating,that of th eslave is rising.. . . "
Sadly I find racism more a problem of the North Than I ever saw it in the South.Tough your point on "property" is documented as it was defined respecting the slave trade.But it was a definition imported from the Brits.
Which then, of course, leads us to the hack-eyed observation that Jefferson freed only a tiny percentage of his own slaves.
Setting aside for one moment our 21st c. notion(s) on such a matter, Jefferson's actions - or lack thereof -- are a little more understandable if we make the clumsy analogy of a farmer preaching against our dependence on OPEC and yet not getting rid of every item on his farm that runs on petrol.
-thus the memorialized excerpt from his Notes on the State of Virginia Query XVIII "and can th eLiberties of a naiton be thought secure when we have removed their only firm basis,a conviciton in the minds of the people that these liberties are the gift of God? That they are not to be violated but with His wrath?Indeed I tremble for my Country when I reflect that God is Just :that his justice cannot sleep forever... The spirit of the Master is abating,that of th eslave is rising.. . . "
To what was Jefferson referring? A possible slave rising in America, or in the Americas? Remember about this time there were bloody slave rebellions in places like what is now Haiti, and in British West Indies.
... "property" is documented as it was defined respecting the slave trade.But it was a definition imported from the Brits.
I'm not sure what you mean here.
Good point, yankeedame.
I read the article last night and was just fixing to post some research sources for the correspondents when, poof, we lost electricity. Therell be thunderstorms in the area today, too so it may be touch-and-go for me. LOL!
Anyway, here is an exhaustive list of links to the various documents which were significant to the framers from 500 B.C. to 1800 A.D. with a few of the ones previously discussed highlighted:
Institutes of Christian Religion - John Calvin (1540). Calvin's magnum opus.
The most celebrated American historian, George Bancroft, called Calvin "the father of America," and added: "He who will not honor the memory and respect the influence of Calvin knows but little of the origin of American liberty." To John Calvin and the Genevan theologians, President John Adams credited a great deal of the impetus for religious liberty (Adams, WORKS, VI:313). This document includes a justification for rebellion to tyrants by subordinate government officials; this particular justification was at the root of the Dutch, English, and American Revolutions.
Constitution of the Iroquois Nations
The Virginia Declaration of Rights (Mason, 1776)
Property -as you have noted-- was defined at that time to
include the African slave. (as seen in both the US constitution--and latter in the Constitution of the Southern
States [which was based upon the US Constitution] But the slave trade itself was an importation from the British
Crown AND seems an affect of the complex relationship between the West and the contacts with the Islamic States.
The African slave trade was promoted as much by Islam-as
it was by any other group. And Islam remains the only group I am aware of that continues to practice such. IT was
in England and at about the same time in America that the
trade began to lose favor. (much to influence of Whitefield
in the Colonies and Wilburforce in England.)
I question this claim by Dr. Barnett -- that the Constitution binds "government officials, not private individuals". The USC is the highest law of the land. Period. It binds,and covers with its sheltering wings, every citizen of this country. The fact that mistakes have been, and will be, made -- indeed, some of them grievous -- in its name is not the fault of the document. The fault lies in unconquerable arrogance, political sensitivity, and all the other frailties that we humans are heir to.
Barnett poses this fundamental question:
"The real question, then, is not whether the Constitution is binding on citizens, but whether citizens are bound by the commands or laws issued by officials acting in its name. Does the fact that a law is validly enacted according to the Constitution mean that it binds one in conscience?
No, sir, with all due respect I disagree. The fundamental question re: the Constitution is:
Was the US Constitution created for the benefit(s) of the individual states in the united States, or for the whole peoples of this nation called the United States?
As to the question --"Does the fact that a law is validly enacted according to the Constitution mean that it binds one in conscience?" -- essentially changes horses in mid-stream, i.e. from jurisprudence to metaphysical.
More research by Barnett into theories of the Constitution, "then" and "now"; i.e., the original intent of the Framers vs. modern "prudential" and ideological constructions:
At the end of the 19th century, as the so-called "Progressive" movement grew, legislation was passed at the state level regulating and restricting economic activity.
At the same time, morals legislation became much more pervasive, though often falling under the rubric of "public health" what historian Ronald Hamowy has called the "medicalization of sin."
All this was part of an intellectual and political movement to improve upon the result of personal and economic choices by aggressively using government power to improve the general welfare.
Around the turn of the 20th century, the Supreme Court sporadically resisted this movement, striking down some (but far from all) laws restricting economic activities, and also state laws that, for example, prohibited private Catholic schools.
The Court was sharply criticized by Progressives at the time for being "activist" and political, though even some constitutional historians on the left today, such as Howard Gillman, acknowledge the continuity between the principles of the Founding and what the Progressive-era Supreme Court was trying to do in circumscribing state power.
With the Great Depression came the New Deal, which proposed similar measures at the national level. The story of how the Supreme Court came to reverse itself and eventually uphold this legislation as constitutional is fascinating, but too complicated to try to summarize here. (The best book on this is Rethinking the New Deal Court, by University of Virginia legal historian Barry Cushman.)
Suffice it to say that ever since U.S. v. Carolene Products (1938), legislation was supposed to be presumed constitutional unless one of the three exceptions in its famous "Footnote Four" was satisfied.
Heightened scrutiny would be given to a statute that
(a) "appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments,"
(b) interfered with the political process, or
(c) messed with a discrete and insular minority.
This allowed the court to uphold economic regulation, while preserving judicial review of enumerated rights such as freedom of speech and of the press.
(The fact that the right to bear arms explicitly mentioned in the Second Amendment has not been judicially protected, shows the ideological nature of this maneuver.)
Ironically, no one has been more stalwart in allegiance to the Roosevelt-New Deal judicial philosophy of Footnote Four than today's judicial conservatives, such as Robert Bork.
Randy Barnett
Nice phrase.
I question this claim by Dr. Barnett -- that the Constitution binds "government officials, not private individuals".
The USC is the highest law of the land. Period. It binds, and covers with its sheltering wings, every citizen of this country.
I doubt that Barnett would disagree. I sure don't.
The fact that mistakes have been, and will be, made -- indeed, some of them grievous -- in its name is not the fault of the document. The fault lies in unconquerable arrogance, political sensitivity, and all the other frailties that we humans are heir to.
Again, I'd bet that Barnett would agree.
Barnett poses this fundamental question:
"The real question, then, is not whether the Constitution is binding on citizens, but whether citizens are bound by the commands or laws issued by officials acting in its name.
Does the fact that a law is validly enacted according to the Constitution mean that it binds one in conscience?"
No, sir, with all due respect I disagree. The fundamental question re: the Constitution is:
Was the US Constitution created for the benefit(s) of the individual states in the united States, or for the whole peoples of this nation called the United States?
Having read quite a bit of Barnetts writings, it's clear to me he would say for the 'whole people'. Why would you disagree?
As to the question --"Does the fact that a law is validly enacted according to the Constitution mean that it binds one in conscience?" -- essentially changes horses in mid-stream, i.e. from jurisprudence to metaphysical.
Not at all, imo.. Constitutional laws bind all of us in conscience because, in effect, we as citizens have sworn to support & defend our Constitution. As you said, it's the "highest law of the land".
Bumping for contributions to this Freeper Investigation!
Seems to be a popular phrase whether one is for or against either medicalization or sin.
Bump for more contributions!
Marker Bump!
Excellent distinction. The plethora of religious phrases and appeals to God in the founding documents as well as the myriad embellishments on and around government buildings is proof that we are not officially free from religion.
A tougher reading of the establishment clause speaks specifically to prohibiting the creation by the government of a corporate institution of religion.
The Iraqi proposed constitution differs from this only narrowly. While it makes appeals to the cultural heritage of Iraq as Muslim it does not establish an official Muslim institution in the government. The Iranian government, on the other hand, does just this. One is a democracy. The other is an oligarchy.
The interpretation of the establishment clause by recent jurisprudence ignores the founding documents and replaces them with a government scrubbed antisceptically clean of religion. It is nearly imnpossible to avoid the conclusion expressed by betty boop that contemporary government is actively pursuing a campaign to rid the culture of any vestige of public religious expression. This leads inexorably to betty's discussion of utopian government, especially as it distinguishes between government and society.
I was struck in the 90's by the continued interchangable use of the words government and society by the Clintons. They, and especially the Jr. Senator from NY, continue to this day to merge the two. She uses the words government and society interchangably. They are, in her lexicon, one entity. Clearly, then, for Hillary and her ideological cohorts, the establishment clause must, finally, rid society of the infection of religion.
These are not distinctions with no important differences. If government is society then all personal behavior is governable by law.
We are at a crossroads. Many would agree that we have gone far down the road of government intrusion into all aspects of life. When the only concern on the political left is the right of privacy as it pertains to the taking of neonatal life, we do not have far to go toward ending all vestiges of morality.
Jerry Springer, arguably the most vivid torch carrier of the political left, argues consistently that civil matters must be discussed apart from religious influence. He strikes at the heart of the matter.
I would beg to differ. There IS Constitutional recourse but, up to now, no congress has displayed the fortitude to use it!
Oh no, I do not disagree with you, or Dr. Barlett. I merely brought up this up b/c for a good many years -- for a good many decades... after the USC was enacted this question was a sticking point to lawmakers, judges, legal scholars, etc. on both the state and national level.
Correct me if I'm wrong, but I believe this question was first addressed in 1819 or so w/ the Cohens v. Virginia case with CJ John Marshall citing as proof the opening lines of the USC which reads: "We, the people....", not "We, the states..."
But of course lawyers were no different then than they are now -- if they get kicked out the door, they'll try climbing though the window.
Interesting choice of words, as many people do not know that until the Industrial Revolution was firmly in place, (latter first quarter of the 19th century,) the word "corporation" do not refer to business and commerce but to institutions, i.e. Harvard, Dartmouth and what we today would refer to as charities (Red Cross, ASPCA, etc.)various societies (Elks, Women's Temperance League, etc.)
Business/commerce did not so much hi-jack the word "corporation" as it just sort of slipped into it on little cat's-feet.
No, sir, with all due respect I disagree. The fundamental question re: the Constitution is: Was the US Constitution created for the benefit(s) of the individual states in the united States, or for the whole peoples of this nation called the United States? As to the question --"Does the fact that a law is validly enacted according to the Constitution mean that it binds one in conscience?" -- essentially changes horses in mid-stream, i.e. from jurisprudence to metaphysical.
Having read quite a bit of Barnetts writings, it's clear to me he would say for the 'whole people'.
Constitutional laws bind all of us in conscience because, in effect, we as citizens have sworn to support & defend our Constitution. As you said, it's the "highest law of the land".
Oh no, I do not disagree with you, or Dr. Barlett. I merely brought up this up b/c for a good many years -- for a good many decades... after the USC was enacted this question was a sticking point to lawmakers, judges, legal scholars, etc. on both the state and national level.
Correct me if I'm wrong, but I believe this question was first addressed in 1819 or so w/ the Cohens v. Virginia case with CJ John Marshall citing as proof the opening lines of the USC which reads: "We, the people....", not "We, the states..."
You are correct, of course. The 'states rightists' have more or less abandoned that particular aspect of their overall argument that states can ignore the Bill of Rights, -- but they still ignore them, using any means possible to give laws that violate individual rights the color of law.
But of course lawyers were no different then than they are now -- if they get kicked out the door, they'll try climbing though the window.
Lawyers, politicians, whatever, - statists of any stripe have one common goal, gaining the power to control people; its been called the socialist's disease.
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To celebrate the initial success of Google+ here in Tokyo, this morning I created a 21km (half marathon) Google+ logo - with 2 iPhones and 2 feet in 2 hours.
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Shabbir Husain Lathsaheb changed his profile photo.Shared publicly -
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Ancestry.com (NASDAQ:ACOM)
Q4 2012 Earnings Call
March 28, 2013 5:00 pm ET
Howard Hochhauser - Chief Financial Officer, Chief Operating Officer, Principal Accounting Officer and Member of Equity Committee
Timothy P. Sullivan - Chief Executive Officer, President, Director and Member of Equity Committee
Jeffrey A. Harlib - Barclays Capital, Research Division
Anisa Hsieh
Rich Gross
Good day, everyone, and welcome to the Ancestry.com Fourth Quarter 2012 Earnings Conference Call. [Operator Instructions] As a reminder, this conference is being recorded. At this time, I'd like to turn things over to Mr. Howard Hochhauser. Please go ahead, sir.
Howard Hochhauser
Thank you, operator, and thanks, everyone, for joining us. This our first call since our take-private transaction, and I want to thank those of you who are listening today for your support in our December financing.
In our remarks today, we will include statements that are considered forward-looking within the meaning of securities laws. Forward-looking statements are based on current knowledge and expectations, and are subject to certain risks and uncertainties that may cause actual results to differ from the forward-looking statements.
A detailed discussion of such risks and uncertainties is contained in our annual -- in our company's annual report for the year ended December 31, 2012. The company undertakes no obligation to update any forward-looking statements.
We will also refer to certain non-GAAP measures which, in combination with GAAP results, provide additional analytical tools to understand our operations. You can find a reconciliation of these non-GAAP measures to the GAAP results included in our press release. A reconciliation is also posted on the company's IR website found at ir.ancestry.com. And finally, a rebroadcast of this call will be available on our website after 6 p.m. Mountain Time today.
Okay. So now I'm going to walk through the financial results, and then Tim will provide some additional perspective around 2012 and the strategy we're pursuing as we move forward onto our new ownership structure, which, in short, is largely consistent with the path we have been pursuing for the past several years.
To help you in reviewing and analyzing the results, in addition to our press release, we have published an annual report that you can access through intralinks.
Please note that the merger transaction was completed on December 28, 2012. Accordingly, our results are presented for the predecessor company from January 1 through December 28 and for the successor company from December 29 through the 31st. For simplicity, we have also presented combined results for the full year and fourth quarter. I'll be referring only to these combined results in my comments today.
With that, let's jump in. We delivered solid performance for the fourth quarter and full year 2012. Revenue and adjusted EBITDA growth were strong, and we ended the year with 2 million subscribers for Ancestry-branded websites and approximately 2.5 million overall when you include our other brands such as Archives and Fold3. Total non-GAAP revenue came in at $132 million for the quarter and adjusted EBITDA was $50 million.
For the full year, non-GAAP revenue totaled $488 million and adjusted EBITDA was $179 million. Adjusted EBITDA for the 2012 period does not include transaction-related expenses which totaled $109 million for the year, $106 million of which was recognized in the fourth quarter. These include a noncash charge related to stock comp along with certain other cash expenses such as investment banking, legal, accounting, consulting and other merger-related costs. The company delivered approximately $106 million in free cash flow in 2012.
Looking more closely at the Ancestry-branded website results, starting with subscriber growth, we added approximately 313,000 net subs in 2012. As has been the case in recent years, most of our net sub additions came in the first half year. We ended the year in a solid position with 2,016,000 subscribers, up 18% year-on-year.
Overall subscription revenue grew 24% for the quarter to $120 million and for the year, was up 21% to $455 million. Our subscription revenue is approximately 75% U.S. Of our international sub revenue, U.K. was up 14% with 10% subscriber growth.
Subscription revenue increased at a higher rate than our total subscriber base for 2 primary reasons: the impact of Archives.com acquisition, whereby we closed the acquisition over the summer of 2012; and continued increases in the percentage of customers taking premium packages, which we attribute to the ongoing addition of quality content married with sophisticated marketing. At the end of the year, approximately 50% of our base was in such a premium package.
I want to note that moving forward, the primary subscriber metric we will provide is total subscribers. From that, you can derive net subscriber additions. We will no longer be reporting ARPU, SAC or churn. We have made this reporting change to focus the audience on our core financial performance such as revenue, EBITDA, free cash flow and in our total subscriber count. We are doing this on the heels of a very healthy quarter and a positive outlook for the first quarter.
Moving to CapEx. In 2012, we invested approximately $24 million in content, $13 million in technology and -- excuse me, $8 million in facilities for a total CapEx investment of $44 million. That's consistent with our prior stated expectations for the full year. Likewise, in 2013, we are targeting a CapEx spend of approximately $40 million to $45 million, including a content spend of about $25 million to $26 million.
Looking at the balance sheet. We ended the year with $36 million in cash and cash equivalents. In December, we completed a $970 million financing related to the take-private transaction, consisting of $300 million in 8-year senior notes bearing interest at a fixed rate of 11% and a $720 million loan package, including $50 million undrawn revolving credit facility and a $670 million term loan, which expires in December of 2018.
As of December 31, 2012, the interest rate on the term loan was equal to a LIBOR floor of 125 plus an applicable margin of 575. Again, the revolver remains undrawn.
We finished the year with a leverage ratio of 5 spot 22. Given the take-private transaction, we do not plan on issuing earnings guidance going forward. But since our call is taking place on March 28, I want to provide some color around our performance in Q1 and our current leverage.
In short, things are going well. We're now cycling through the impact of the Who Do You Think You Are? television show which aired on NBC from February through the middle of May 2012, and we are pleased with our current net subscriber growth. We expect to finish the quarter with approximately 2,080,000 Ancestry subscribers. That's 3% growth relative to the end of the year and 11% on a year-over-year basis.
We had previously estimated the television show had an impact on our gross subscriber additions of about 100,000 or about 8% of our total, and that continues to look like the right estimate. In fact, due to our expected performance in Q1, we expect to have a cash balance at March 31 of approximately $70 million. And with strong year-over-year growth and adjusted EBITDA, we expect to have a leverage ratio of approximately 4.8x at March 31 or nearly a full term lower than when we did the financing. That assumes total debt outstanding of $970 million or $900 million on a net basis.
In short, we are pleased with our business performance in Q1, including our revenue, subscriber and adjusted EBITDA growth. With that, I'll now turn the call over to Tim.
Timothy P. Sullivan
Thank you, Howard. Since this is our first earnings call as a newly private company, and I know that some of you are still relatively new to the Ancestry story, I really wanted to briefly start with just a simple restatement of our core growth thesis.
We continue to believe that family history is a sizable potential market, and that remain in the early innings of this market's growth and development. What we know is the desire to understand who we are and where we've come from is a fundamental and relatively universal human interest. Research that we have commissioned from Harris Interactive indicates that 80% of American adults are interested in their family history. So that's 250 million people just in the U.S. that say they care about the core thing that we do.
We further believe the key to growing this market is the creation of online experiences that make family history easier, more accessible, more social and more collaborative. It's this belief that drives our focus on investments in technology and product experience. In a simple sense, as much as the Ancestry has revolutionized family history over the past decade plus, we believe these investments in product and technology can continue to revolutionize and to democratize family history in ways that will make our services even more relevant and more interesting to millions more families around the world.
We also believe that we are still a long way from achieving our goal of aggregating the world's family history knowledge. In archives all around the world and in shoeboxes and annex everywhere, there remain so much content yet to be digitized, indexed and put online in a way that is easily accessible to our users. Digitized historical content has always been the foundation of our value proposition, so we remain highly focused on content acquisition and aggregation, both by expanding our network of strategic relationships with archives, governments and private institutions all over the world, but also by creating the tools and the platform that allow our users to upload their own archival photographs, documents and stories.
We also think we have a great subscription business model with attractive economics that allows to make significant investments in building our category defining brand. Our marketing efforts, combined awareness-driving media like TV, radio and PR; efficient customer acquisition from paid search, display advertising, affiliate marketing and SEO; an increasingly sophisticated and personalized marketing to our large registrant base have already demonstrated some level of interest in our products.
And lastly, we think family history over the long term is a global idea. And while our business today is largely focused on our well established but still growing businesses in the U.S., the U.K., Canada, Australia and Sweden, we are making important content investments in markets like Germany where we believe that -- that we believe can emerge as relevant businesses for us someday, while at the same time, fueling new discoveries for subscribers in our existing core markets.
So with that basic overview of our growth thesis, which has again remained very consistent over time, let me highlight a handful of the important accomplishments, milestones and market developments that defined our success in 2012.
As always, I'd also like to thank our very talented employees, who continue to think about the best ways to serve our loyal subscribers and work hard to innovate in countless ways that help drive this business forward.
First, let me say that this was clearly a big year for content. In 2012, we added our 10 billionth record to Ancestry, led by the important release of the 1940 U.S. Census, but also including the release of many other content collections around the world. We made investments in our core technology and product experiences, including improvements to our image viewer, our record hinting technology, social collaboration and mobile.
Let me take a moment to speak a little about mobile as we are especially pleased with the recognition that we've recently received for our mobile efforts. Our Ancestry mobile app was a winner of the 2013 Appy Awards, which honors the best apps in the diverse range of categories, and our Ancestry Android app was named by Google as 1 of the top 12 apps of 2012. We will probably surprise no one that we've seen a dramatic growth in the number of people interacting with our service on a mobile device. Today, over 1/3 of our new registrants are coming from mobile and our apps have been downloaded nearly 7 million times since their initial launch in 2010.
Also in 2012, we completed the acquisition of Archives.com, which has given us a complementary and growing second brand in the U.S. focused on an affordable entry level price point and a simple streamlined user experience. In addition, we launched our new AncestryDNA product this year, a service that benefits our existing subscribers by helping them break through research brick walls, but is also a great introductory experience for users that are new to family history. We now have a customer database of more than 120,000 DNA samples. And just last week, we announced a new lower $99 price point for AncestryDNA, a price point that we believe will allow us to grow our DNA database even faster in 2013.
And lastly, we obviously completed our take-private transaction in late December. And Howard stated, and I will reiterate, our essential strategy as a private company will remain much the same as it has -- as it was when we were public.
And as Howard also communicated, we're excited about 2013 and beyond, and we're off to a very solid start so far this year. So I'd like to highlight a few of the key areas for content and product investment that we plan for in 2014. First, on the content front, our focus for this year is on continuing to add to the largest and most comprehensive collection of online family history content available anywhere. To achieve this, we will continue to develop our unique network of partnerships with archives and record offices at the national, state and provincial levels in all of our core territories and to invest in bringing the most useful and viable content to our customers.
One important project that I'd highlight is a collaboration that we announced just last week with FamilySearch International, a nonprofit organization sponsored by The Church of Jesus Christ of Latter-day Saints. Over the next few years, FamilySearch and Ancestry will work together to try to digitize and index over 140 million pages of U.S. probate records with a goal to create a national database of wills, letters of administration and other probate documents spanning 1800 to 1930. We think that we also have been a neglected source of online family history research and yet some of the most useful and fascinating documents available. So we're therefore excited and pleased to be working with FamilySearch on this project, and we look forward to finding other ways that we can collaborate with FamilySearch to advance our respective goals.
Also important are our investment -- content investments in Germany. By the end of 2012, we secured deals which cover more than 20 million vital records, including Mainz, Dresden and the state archives in Berlin. And we expect 2013 to see an acceleration of our content efforts in Germany as we seek to get critical mass of key vital records for that important market.
On the product front, look for further improvements in how we make our products easier to use. For our mobile apps, we'll be about making it simple to get started on the Ancestry and to share family history with others on the go. In our DNA experience, it will be about improving both our ethnicity and matching experience.
In 2013, we'll continue our R&D investments in semantic extraction technologies that we believe can continue to expand the amount and quality of content we expose to our members. We've been successful over the last 18 months applying this technology to content collections like historical city directories, with the results of making more of our ancestors in these city directories more discoverable and more hintable inside the Ancestry member tree experience. We'll also continue to make intuitive improvements to our search engine experience, designed to help our members better find the things they're looking for.
And finally, we'll continue to improve sharing. We think there is a lot of upside in helping our members better share their family history experience with the rest of their family, and we see better sharing of discoveries and family history stories as key to keeping our existing members engaged but also important to attracting new people to our service.
As I hope that provides a good summary of 2012 and our focus for this year, we continue to be quite excited about the business, and it's clear that we have a lot to work on and a lot of opportunity in 2013 and beyond. So with that, we will now turn it over to questions.
Question-and-Answer Session
[Operator Instructions] And we'll take our first question from Jeff Harlib with Barclays.
Jeffrey A. Harlib - Barclays Capital, Research Division
Just -- can you just talk a little bit about marketing spend in 2013, areas of emphasis and also how you expect that to trend as a percentage of revenues?
Timothy P. Sullivan
This is Tim. I'll start -- I mean, I think in terms of areas of emphasis, it's really largely the same game plan that we've employed in past years. I would say we've made some improvements to the way we execute on digital marketing. In all of our markets, we're rolling new creative for television in the U.S. next month, and we will have new creative in other markets throughout the course of the year, but it really is largely the same approach to marketing and generally the same kind of marketing mix we've seen in past years.
Howard Hochhauser
With respect to percentage of revenue, we're looking to, to piggyback what Tim said, sort of further optimize our media spend as we had done every quarter as a public company, but be as efficient as possible.
Jeffrey A. Harlib - Barclays Capital, Research Division
Okay. And are there any changes planned in your subscriber rates or the type of subscriptions you offer?
Timothy P. Sullivan
Yes, again, this is Tim. We're really constantly and regularly tasked different price and packaging combinations in really all of our websites. So I wouldn't say we have specific plans to make changes today, but I would say we're constantly looking at that and won't hesitate to test new ways of both packaging and pricing our service throughout this year and beyond.
Jeffrey A. Harlib - Barclays Capital, Research Division
Okay. And just with Germany, you're building up content there. You have a rough timing on when you expect people launch your site or get further down the road?
Howard Hochhauser
That's further down the road. We've made a lot of progress on the acquisition of the content, which is going to continue now and actually start the digitization indexing phase, but that's a down-the-road step.
Jeffrey A. Harlib - Barclays Capital, Research Division
Okay, okay. 2014 potentially or?
Howard Hochhauser
Potentially in 2014, you may start to see some marketing initiatives.
Jeffrey A. Harlib - Barclays Capital, Research Division
Okay, okay. And lastly for me, just taxes for 2013, should we be modeling a normal tax rate or lower? Just some help on that.
Howard Hochhauser
Yes. Our effective sort of cash tax rate will be approximately 25%. Again, that's a cash rate, not a GAAP rate. From a GAAP perspective, we'll be in a loss position.
We'll go next to Anisa Hsieh with Morgan Stanley.
Anisa Hsieh
So there had been some press -- reports in the press that Who Do You Think You Are? show may be coming back on TLC. If Ancestry were to participate in such a show again, would you be looking at the same level of cost or investment as in the past? I believe it was in the single digit million.
Timothy P. Sullivan
Well, first, let me say it has been reported on and off that there may be some discussions. Others say that those discussions continue. We think we're a lot closer certainly to the end of that process than we are at the beginning. We love to see the show back on the network, but there's really nothing more specific to say about our plans there.
Howard Hochhauser
Yes, I would just add with respect to cost, to the extent we do participate, and there was a show, likely be it's been reported via on a cable network. Cable has sort of different economics than NBC or ABC and therefore, the costs are likely to be far lower than it was in the past. I would just add, the impact to the company would therefore also be far lower.
[Operator Instructions] We'll go next to Rich Gross with Columbia Management.
Rich Gross
A couple of questions for you. First of all, in terms of the lack of data around gross adds churn, SAC or ARPU, can you give us any data on that or the gross adds even, so I can calculate further data points? I don't quite understand the reasoning behind not reporting that anymore.
Howard Hochhauser
Yes. So as a recovering sell side analyst, as my first Wall Street job, I could sympathize with you. Having said that, I'd say a few things. Now more than ever, we're a multi-brand company, right? You have Ancestry, you have Archives, you have Fold3. So just focusing on a set of metrics without focusing on the GSAs for all of the brands would be probably misleading, and so we get people caught in the weeds. The other aspect is we really want to focus people on revenue, EBITDA and free cash flow and not get mired in this discussion around churn in the quarter, which is impacted by a variety of things including the amount of new subs versus old subs, monthlies versus annuals. So we're doing this on the heels of we think was a really solid Q4, really pleased with our performance in Q1. And again, now we're topping Who Do You Think You Are? period, which, again just to reaffirm what I said in my speech, we had estimated around 100,000 GSAs contribution from that TV show, that looks to be the right number. We're showing net sub growth in Q1 that we're comfortable with based upon the guidance in my quote in the release, EBITDA growth that we're comfortable with. So we're doing it on the heels of strength, and again, it's really getting people focused on the right metrics, which we believe are revenue, EBITDA and free cash flow.
Rich Gross
So when I'm looking at it, I'm thinking about your -- the value per subscriber with your additional subscriber growth. Are there any thoughts from your perspective on how that's changing in terms of your revenue per subscriber, acquisition cost per subscriber? Have you seen anything since your go private transaction, have you seen anything with the switch that you made to the promotion of the annual versus the semi-annual or quarterly subscriptions?
Howard Hochhauser
Yes, I would say to your point, I think, you're getting at lifetime revenue and lifetime value, both measures, which we feel really comfortable with. I'll also caution you that those metrics tend not to move quarter-to-quarter. Our subscriber base is remarkably consistent in their behavior and renewal rates are remarkably consistent by package and by duration. So we feel very good with where our lifetime value is for the Ancestry base and the Archives base.
Rich Gross
Can you comment on the trend that you saw with the subscriber durations in terms of annual, semiannual? You guys kind of are getting into that anniversary of changing that pricing or changing that promotion that you're pushing in terms of the subscribers. Any commentary around that would be useful.
Howard Hochhauser
Sure. Other than now that we're into the SAC renewal sequence of the semiannual renewals, they're renewing just as we had expected them to. So we reaffirmed our decision that we made over a year ago now to implement that package. But I would amplify what Tim had said, we are price testing all the time, testing different packages, different offer pages. And one measure that we look at is conversion and LTV. To the extent we make further changes, it would be accretive to one or both of those measures.
Rich Gross
And have you seen any opportunities there or -- thus far?
Howard Hochhauser
Again, we test all the time, and our customers are going to be the first to know should we make a change.
Rich Gross
All right. And then, in terms of cash guidance that you gave and the restricted cash that was on the balance sheet, can you comment quickly kind of what the restricted cash was and if the guidance includes restricted cash?
Howard Hochhauser
The guidance excludes restricted cash. Restricted cash is set aside for -- to the appraisal or the shareholders that didn't tender on the offering.
Rich Gross
Okay. And then in terms of product revenue for 2013, can you give any comments around that in terms of what you guys are thinking on new software or any thoughts on the DNA product?
Timothy P. Sullivan
Yes. The only sort of exciting initiative is the lowering of the price of DNA to $99. So that's going to drive the product revenue number.
Rich Gross
Any changes in terms of how you're thinking about gross margins or cost savings that you've had there or how you think that's going to change through the year with the DNA?
Howard Hochhauser
We're not going to talk about that today.
Rich Gross
Okay. Are you going to talk about that next quarter, or is that something that won't be discussed?
Howard Hochhauser
We'll update you next quarter.
[Operator Instructions].
Howard Hochhauser
It looks like there are no further questions. I want to thank everyone for their participation. And our first quarter earnings call should be around the corner in 4 to 5 weeks. Thank you.
And ladies and gentlemen, once again, that does conclude today's call. We do appreciate everyone's participation.
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text:
Das Rudel
In the upper gallery is this by Joseph Beuys (1921-86), considered one of the most influential figures in modern and contemporary art. His charismatic presence and unconventional style gained him international fame and notoriety in the 1960s but his innovative influence is still felt today.
Das Rudel or The Pack exudes the chaotic and dynamic energy which Beuys considered essential in order to bring change to society. Twenty-four sledges, resembling a pack of dogs, tumble from the back of a VW van. Each one carries a survival kit including a roll of felt for warmth, animal fat for energy and sustenance, and a torch for navigation and orientation. Beuys commented: 'In a state of emergency the Volkswagen bus is of limited usefulness, and more direct and primitive means must be taken to ensure survival.'
Beuys based it on a particular day in his Luftwaffe career, when, on a March day in 1944, his Stuka was shot down over the Crimea and he was rescued by Crimean Tartars. He recalled the story decades later:
"The last thing I remember was that it was too late to jump, too late for the parachutes to open. That must have been a couple of seconds before hitting the ground. Luckily I was not strapped in — I always preferred free movement to safety belts… My friend was strapped in and he was atomized on impact,there was almost nothing to be found of him afterwards. But I must have shot through the windscreen as it flew back at the same speed as the plane hit the ground and that saved me, though I had bad skull and jaw injuries. Then the tail flipped over and I was completely buried in the snow. That's how the Tartars found me days later. I remember voices saying "voda" (water), then the felt of their tents, and the dense pungent smell of cheese, fat and milk. They covered my body in fat to help it regenerate warmth, and wrapped it in felt as an insulator to keep warmth in."


text:
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