Wednesday, November 15, 2017

Liberal Activism and One-Way Rights (Part II)

In the 19th century Charities operated without any fear from liability from the people who used the charities for several reasons. First, persons used their own free will to choose to use a charity and secondly and more importantly, the reward to use a charity grossly outweighed any risk of injury. Many charities today, do not offer medical services because in Tunkl v. University of California (1967) the Court made charities liable to the safety of its users. This may sound logical, but to people who cannot afford healthcare, the risks of treatment outweighs the risks of non-treatment. Because less charities are providing free medical services, Congress passed the Emergency Medical Treatment and Active Labor Act (EMTALA, 1986). EMTALA made all hospitals responsible for treating any patient regardless of their ability to pay. Once again, this may sound logical, but the patient bears no responsibility in their free care. Patients must be treated even if they fail to follow medical advice and fail to take medications prescribed at previous free care visits. Patients have to be treated if they are drunk or high or if the ailments are self-inflicted via non-responsible behavior. Patients receiving free care cannot be forced to be a lower priority over a paying customer even if the injury to a paying customer may be worse. Patients cannot even be denied free care if they are disruptive or misbehaving. In fact, many hospitals have reduced the size of their emergency rooms so they do not have to face the liability threat to treat “free” patients. After all, the hospital liability risk for treating a “free” patient is much more than treating a paying patient. The 1994 case the Matter of Baby K outlines the absurdity of the EMTALA Act if anyone wishes to indulge in homework. The bottom line, smaller emergency rooms means less care for anyone in need. Once again, why doesn’t the government subsidize the care it mandates for hospitals? The reason is because liberals view companies (including hospitals) as evil and as the saying goes “the customer is always right”. Which, of course, is not the case. The customer is wrong over 90 percent of the time when it comes to product injury. Drunk drivers wrecking their car into a telephone poll have won more lawsuits than they have lost against car companies. A person who ingested vaginal jelly on toast won an injury settlement when she became pregnant. The bottom line is that modern Constitutional law provides more rights to ignorant and irresponsible persons which in the long run costs responsible and accountable persons higher fees and insurance rates. In the 1907 case, Cotnam v. Wisdom, the court held a patient who received emergency care by a surgeon, who treated injuries on the scene of an accident, was subject to pay for these services even though the patient died. In other words, both patients and doctors had equal rights (irresponsible patient received emergency help, but the patient had to pay for services even if the patient died), which is not what happens today. Patients have more rights than doctors and can sue doctors even when patients refuse to adhere to doctor instructions. In the age of Medicare and Medicaid doctors can no longer afford to make house visits or provide any pro bono services. In other words, medical care is becoming worse due to “one-way” federal and state regulations attacking the medical industry.

Let’s consider a more modern example of bullying. Bullying has always happened in our society (As a youth I was bullied and I regretfully bullied others) but it is getting more attention these days because of cyberbullying. One would think we would grow out of our bullying ways but that is hardly the case. Adults still like to bully other people. Since I voted for Trump people I did not even know thought it was right to bully me and call me a bigot and racist on Facebook. I simply ignored them after suggesting it makes little sense to use the same behavior that you are accusing Trump of abusing. In any event, I understand the harms associated with bullying. But, should bullying be under the control of government regulation? No, even if it leads to any rare instances of suicide. Suicide is a complicated issue and it is impossible to say with certainty that bullying is the lone reason for the suicide. Bullying may have been the tipping point for someone to commit suicide, but was it the only reason? Probably not, suicidal thoughts generally persist for a long period of time prior to the act of suicide. A person who commits suicide obviously has some serious psychological issues and it is part of the responsibility of the ill person to garner more help (and what about parents who neglect warning signs). Bullying laws would target bullies and require no action by those being bullied to avoid conflicts. Bullying laws provide no constructive avenues for people who are being bullied to seek protection and help. And why aren’t there any laws to prosecute parents who neglect to heed to the warning signs of suicide? Why don’t those being bullied simply remove themselves from bullying avenues such as social media? The other question is what constitutes bullying words? I have read some benign remarks that have been considered bullying. I have, from time to time, gone into social media chat rooms for sports information (just to read). Many subject threads start out informative, but the posts devolve into personal attacks having nothing to do with the subject matter. And these squabbles are between folks who root for the same team! Is this bullying? Can both parties of the dispute be seen as bullies? Maybe this is defamation and not bullying? Defamation of character by false factual statements is already illegal especially if the harm costs a person business or some monetary loss. My point is bullying regulation starts a slippery slope because it restricts free speech. Maybe we can hold bullies liable under already maintained defamation laws? In the era of political correctness what constitutes bullying is hard to distinguish since we are overly sensitive and become offended much to easily. Are media pundits bullies because someone finds their views insensitive? Are uses of the race card a form of bullying or fear mongering? My fear is that bullying laws will become a liberal outlet to further diminish free speech. In fact, liberals become bullies on our college campuses to remove speech that they do not agree with. Bullies in the long run will judged by others in a negative way because they violate social norms. Hence, bullies will be punished by society by losing jobs and friends because of their anti-social behavior. Government intervention is not always the answer.

Saturday, November 11, 2017

Liberal Activism and One-Way Rights (Part I)

I was talking Constitutional law with my brother (a liberal lawyer) and he kept reminding me to remember we “now live in the 21st century”. I knew exactly what he meant by that: The Constitution is to be interpreted differently now than in the past. How is the “modern” Constitution to be interpreted according to liberals? My brother is a typical liberal because he believes the Constitution should provide more rights and preferential treatment to certain groups of people at the expense of others (even though the Constitution makes no mention of gender, ethnicity, or socio-economic status). That is right, the modern liberal interpretation of the Constitution is not much different than the slave owner view of the Constitution prior to the Civil War. Unfortunately, this type of discrimination is exactly what is happening in our society. This is the “Consequentialist” view of the Constitution where economic progress and social welfare are more important than individual freedoms (equal rights for all). In this text I will examine several examples of how liberal activism is used to protect certain groups of people and why it is nothing more than another form of discrimination. This liberal political philosophy of more rights to one victimized group of people, or what I like to call “one-way rights”, fits perfectly into the overall liberal activism agenda or goal: To pit every demographic group against each other (especially against white-men). The “war on women” and race baiting are common themes in liberal politics and it feeds the narrative that women and minorities ought to have more rights than white men, not just equal rights.

Take, for example, the employer / employee relationship. In the 19th century state and federal courts protected both employers and employees from contract breach. In Stark v. Parker (1824) the court held an employee breach of contract did not qualify the employee the right to collect money for work already completed. Conversely, the court held if the employer breached the contract then the employee in that case would be entitled to full restitution of the contract value. In a similar case in 1834 (Britton v. Turner), the court held that the employee was entitled to money for work completed minus damages for the employer to find a replacement. In both of these cases, although decided by vastly different opinions, the courts recognized the value of both the employee and employer relationship by their ability to uphold their end of work contracts. In Stark the employee received no monetary benefit while in Britton the employee received some monetary benefit minus damages for breach of contract. Under no circumstances did employers or employees receive full monetary benefits for breach of contract. By the 20th century the Court viewed the employer and employee relationship much different. That is because most government laws are now written to protect only the employee from discrimination or wrongful termination. But what is to stop an employee from terminating his employment status for discriminatory reasons? For instance, an employee may end his employment because his boss is Jewish, a female, or old. In other words, under modern law the employer / employee relationship is a one-way contract to protect the rights of the employee and not those of employers. Why? Under all circumstances Liberals view corporations as evil and workers must be protected from that evil. This is, of course, a flawed oversimplification view of corporate America. After all, it is the employee, not the employer, who commits acts of atrocity (now known as work place violence). Work place violence makes it sounds as if violence is justifiable in the workplace otherwise it would be called for what it is: murder, assault, robbery, etc. If employers can be sued for their deliberate failure to offer jobs to workers then why can’t workers be sued for their unwillingness to accept job offers? This question merely highlights the fault of one-way discrimination laws.

If employers do wrongfully discriminate against employees than violating companies will be punished via the social norms of society that will force them to lose business and over time go bankrupt if they do not correct their bigoted ways. Besides, discrimination laws achieve one outcome: further discrimination. For instance, protecting employers from wrongfully dismissing workers because of age discrimination merely keeps older white employees on the payrolls at the expense of younger females and diverse candidates. Therefore, age discrimination policies merely discriminate against other persons. Diversity and affirmative action policies discriminate against more qualified candidates. My point is that laws for the purpose of protecting employees may protect some workers while discriminating against others. Hence, it is better for the government to butt out of the business of making discrimination laws and let the employer / employee relationship function as it did in the 19th century (fairly). Let’s examine one modern example. I do not care if NFL owners have colluded to keep Colin Kaepernick out of the NFL. If Kaepernick’s non-work-related antics are costing NFL owners money, then they have every right to blacklist him. This is not discrimination, it is what the Godfather would say “it is not personal, it is just business”. Remember, those who truly discriminate will be punished by society without government intervention, coercion, and discriminatory regulations.

Then there is the manufacturer and customer relationship. In the 19th century the courts viewed both sides of the manufacturer and customer relationship equally. In the 1858 case Smith v. Brady the court held a customer could refuse to pay for services if a builder violated the contract specifications. Conversely, however, the court held had the customer breached the contract in any way the builder would have recouped all payments. However, by the 20th century in Hennigsen v. Bloomfield (1960) and Greenman v. Yuba Power (1962) the Court rejected any contractual defenses in personal injury cases. If persons were injured by products for using them incorrectly then the manufacturer was still responsible for damages under most interpretations of the law. These cases, once again, made the manufacturer the unequal of the customer. Why? Well, once again, liberals hate those evil corporations who are always in the wrong. Consider a simple example of rent control laws which provide preferential tenants rents at a fraction of real estate values at the expense of the landlord. Would rent control be democratically approved if the burden fell on everyone in the district to contribute to the rent control system? And why doesn’t the government subsidize the landlord for the regulation it mandates? The answer to these questions are simple, every landlord is seen as rich and therefore they are all evil and must pay for their greed. The Left creates a narrative of stereotypes to punish certain classes of citizens under one size fits all government regulation. Of course, anyone with a lick of commonsense realizes all landlords are not wealthy, but the state will treat them all as multi-millionaires.

Thursday, November 9, 2017

Maybe Trump Chaos is a Good Thing?

I do not like Trump not just because he is an obnoxious egomaniac, but because most of his policies are straight out of the Democratic playbook. He is not a true conservative. That being said, I would vote for him again for a few reasons. First, Trump delivered on his federal court appointees (including the Supreme Court) and that was the primary reason I voted for him in 2016. The Supreme Court could still be a major reason to vote Trump again in 2020. Secondly, I have another reason for voting for Trump in 2020: Chaos. I believe Trump is a product of Republican and Democratic failure to deliver not just politically but for the overall mess created in Washington including massive pay for play and corruption. Washington is now in Chaos and because of that we may finally start to “drain the swamp” of the many bad characters who are robbing the American public blind.

It truly hurts to turn on the news and attempt to watch trustworthy news outlets whom seemingly play politics with every story and situation and even make up news stories (which believe it or not is Constitutional). But one thing is certain, if Trump was never elected president then the political status quo would have continued in Washington. Instead, both irate Republicans and Democrats are demanding answers to Russian Collusion by appointing a special counsel: Robert Mueller (remember not one independent counsel was appointed to investigate anything under Obama). This has led to the arrest of corrupt lobbyists including former Trump campaign manager Paul Manafort (not for collusion, but for corruption). We have also learned that Manafort also has ties to liberal lobbyists such as Clinton campaign chief, John Podesta’s brother Tony. We have also learned that Clinton took over the DNC and worked with top Democratic officials to win the nomination by rigging the Democratic primary over Bernie Sanders. There may not have been any Collusion between Trump and the Russians to overturn the 2016 election and any Russian interference (via social media) did nothing to change the outcome of the election. But if Sanders won the Democratic nomination he probably would have defeated the unpopular Trump in the general election (although Sanders is not free from corruption claims himself – his wife used his celebrity to obtain a huge loan for a college she ran and promptly defaulted on the loan and college went belly-up). Hence, Clinton and DNC collusion changed the outcome of the election, not any type of Russian interference.

The Trump election also helped us to learn about the corrupt Uranium One deal between the U.S. and Russia under the Obama administration. Many of the players in the Uranium One scandal include the same cast of characters including Robert Mueller, James Comey, Hillary Clinton, Bill Clinton and Barack Obama. Maybe we can learn the Truth behind the fake Trump Dossier and about how that document was used by the Obama administration to spy on a political opponent. Hopefully, under Trump we will get answers to other Obama scandals including IRS targeting, Media targeting, Benghazi, Fast and Furious, Clinton’s email server and others. If people are never held accountable for their corrupt behavior, that behavior will continue to fester in Washington.

The chaos of the Trump administration will hopefully do a few things. First, it will expose those media outlets and personnel that have a political agenda and who generate fake news. Secondly, it will “drain the swamp”: of both Republican and Democratic criminals in Washington. Hopefully, it will hold those guilty of collusion and corruption accountable and sentenced to lengthy jail sentences. If some main stream political Republican or Democrat is elected in 2020, then we may never find answers to many political scandals and it would be back to politics as usual in Washington. Unless Trump is elected and unless people are held accountable for our quid-pro-quo system of politics then nothing will ever change in Washington. Although I am not a fan of chaos, there needs to be some chaos to put pressure on the fraudulent players in Washington. I doubt political discourse will ever improve in this country, but draining the swamp is the first step (including the media). And when I speak of chaos, I only speak of the both political and media hysteria. The country can function under such forms of chaos. For instance, despite the Trump chaos, the markets and economy are rallying.

Saturday, November 4, 2017

Is Money Free Speech? (Part II)

In Davis v. Federal Election Commission (2008) and Arizona Free Enterprise PAC v. Bennett (2011) the Court held that the governmental compelling interest to “level electoral opportunities for candidates of different personal wealth” was not a reason to limit free speech. All candidates have different “strengths”. Will the government regulate other strengths such as name recognition of a celebrity running against a no-name commoner?

In Citizens United v. Federal Election Commission (2010), the Court overruled McConnell where it abridged corporate free speech and Austin v. Michigan Chamber of Commerce (1990) in its entirety. In Austin, the Court held that corporate free speech restrictions were constitutional because “corporate wealth can unfairly influence elections.” However, media corporations have the same power but they are exempt from Austin ruling. In Citizens United the Court held that laws which burden political speech are “subject to strict scrutiny.” The First Amendment was created to protect “political speech” so citizens and groups could speak freely without the threat of being restrained. The Court in Citizens United applies the standards held in Buckley and Bellotti. In First National Bank of Boston v. Bellotti (1978) the Court held that corporations have the First Amendment right to make contributions to ballot initiatives. Bellotti said political speech is “indispensable to decision making in a democracy, and this is no less true because the speech comes from a corporation rather than an individual.” Justice Kennedy asserts if Austin was correctly decided then “the Government could prohibit a corporation from expressing political views in media beyond those presented here, such as by printing books.” Kennedy also says that Austin is flawed because the “majority undertook to distinguish wealthy individuals from corporations” since both can have “unfair input” on elections. Also “All speakers, including individuals and the media, use money amassed from the economic marketplace to fund their speech.” Austin also brings forth another government “compelling interest”: the anti-distortion rationale. Kennedy says that the “anti-distortion rationale” is a “dangerous and unacceptable consequence because Congress could ban political speech of media corporations.” A corporation that owns a media company would have preferential treatment over other companies that the First Amendment does not distinguish between. Austin is also discriminatory because it “prevents the distorting effects of immense aggregations of wealth” and it is “not aimed at amassed wealth.” Another compelling government interest brought up in the Citizens United case was to “protect dissenting shareholders from being compelled to fund corporate political speech.” Corporations, like the U.S. political system are democratic in nature, and a minority of dissenters lose out to the majority all the time. Besides, shareholders can sell if they do not like the corporate message or feel they wasting profits. In Bennett, the dissent says that “public funded” elections are acceptable even though 100% of the public will not like the candidates (this obviously conflicts with their “protecting dissenting shareholders” compelling interest). Another compelling interest brought forth by the government is the fear that “foreign individuals” working for U.S. corporations could “influence our Nation’s political process.” This argument also does not hold muster since a vast number of American citizens have multiple citizenships and or even live overseas but their right of free speech is not regulated even though they may have opinions of foreign influence. Also, a large majority of Americans are first generation immigrants who still have loyalty to their mother nation, but they are not restricted in their freedom of speech.

The dissenters in Citizens United try an “originalist” argument claiming that the Founders never intended the First Amendment to cover corporations. They contend that the Founders disliked corporations. This is true, Thomas Jefferson, like many Republican founders favored agriculture, but would they dislike the many agriculture companies that exist today? This did not stop the government from creating a National Bank and other companies over the centuries that would aid in carrying out its enumerated powers for the People of the United States: Amtrak, Conrail, Tennessee Valley Authority, and a number of financial, insurance, and retirement companies to name a few. Why is acceptable for the government to own corporations free from speech regulation while private sector companies are held to a higher standard of regulation and free speech rules? It was shown earlier that the Court has found on numerous occasions that corporations have constitutional rights. And let’s not forget what the First Amendment says: “Congress shall make no law abridging the freedom of speech.” The Amendment makes no distinction between individual, groups, organizations, unions, or corporations. They only way the dissenters have an argument is if the First Amendment text does not say what it means or mean what it says. The dissenters even go as far to hint that “newspapers” and the media did not have First Amendment rights in the founding era.

The dissenters in Citizens United argue that Federal Commission regulations do not account for a ban on corporation free speech because they can form PAC’s. However, PAC’s are highly regulated and are not ideal for midsize or smaller companies. I will not place the full BCRA rules for corporations in this writing (they can’t reach more than 50,000 people, campaign finance money cannot come from the company treasury, they can’t broadcast messages, and there is more) but if you read the entire list of restrictions it is essentially a ban on corporate speech.

Corporations are people and money is free speech and this is defended by over 200 years of precedent. People and corporations use money every day for free speech: advertisements, marketing, gifts, travel, pamphlets, books, blogs and so forth and so on. Where would people be without corporations? Corporations may have been a bit foreign to our founders, but by the 19th century corporations have been deep rooted in American history and tradition. Corporations coupled with people have been successful in fighting evil around the world. Without corporations, we could be speaking German. Thus, corporations are just as important to our freedom as are people. This should not be forgotten.

Thursday, November 2, 2017

Is Money Free Speech? (Part I)

Is money free speech? The answer to this is yes for numerous reasons I will outline in this text. Freedom of speech covers much more than speech, it covers certain conduct that may be seen as an expression. For instance, the Court has held that flag burning (Texas v. Johnson, 1989) and burning a cross in the yard of a minority family (R.A.V v. St. Paul, 1968) are constitutionally protected by free speech. Speech, regardless of how bigoted or hateful it may be, is tolerated under the Constitution. This is not to say a crime had not been committed in these cases, but a conviction cannot entail limiting free speech. The court has found that speech may be limited if the federal or state government has a “compelling interest” to do so. In United States v. O’Brien (1968) the Court upheld a federal statute that made it a crime to burn a draft registration card. In this case, the Court found that “Congress power to raise and support armies and to make all laws necessary and proper to that end is broad and sweeping” and the “many functions performed by Selective Service cards” established beyond a doubt that “Congress has a legitimate and substantial interest in preventing destruction to draft cards.” Free speech may be restricted if the expression “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action” (Brandenburg v. Ohio, 1969). Free speech can also be restricted if there are “fighting words” or words that are “likely to provoke the average person to retaliation, and thereby cause a breach of the peace” (Chaplinsky v. New Hampshire, 1942). We know people use money all the time in their conduct to express themselves through things they buy, especially gift for others. Is this enough to make money free speech? Sure, especially since money is very rarely seen as “fighting words” or “inciting lawless action”. If there is no compelling government reason then a “tie goes to speaker, not the censor” (Wisconsin Right to Life v. Federal Election Commission, 2006).

Money as free speech comes before Supreme Court usually in the form of congressional campaign finance laws. Buckley v. Valeo (1976) was the first Supreme Court challenge to Congressional campaign finance laws. The Court found that the $1,000 limit to campaigns by persons was legal because of the compelling interest the government was trying to prevent in form of corruption or a quid pro quo appearance of abuse: “to limit the actuality and appearance of corruption resulting from large individual financial contributions.” While the court held provisions that capped “contributions” constitutional, they found limits on “expenditures” unconstitutional: “the concept that government may restrict speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment, which was designed to secure the widest possible dissemination of information from diverse and antagonistic sources and to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” In McConnell v. Federal Election Commission (2003) the Court heard challenges to the McCain-Feingold “Bipartisan Campaign Reform Act of 2002 (BCRA)”. The Court upheld most of the “free speech” limitations placed by Congress in the Act by contending that money is not free speech, pooling money is not free speech, and speech by corporations can be abridged. In his dissent, Scalia takes up all these points and wins the argument. Scalia points to four cases where “an attack on the funding of speech is an attack upon speech itself.” “In Schaumburg v. Citizens for a Better Environment (1980), we struck down an ordinance limiting the amount charities could pay their solicitors. In Simon & Schuster v. Members of NY State Crime Board (1991), we held unconstitutional a state statute that appropriated the proceeds of criminals’ biographies for payment to victims. And in Rosenberger v. Rector and Visitors of University of Virginia (1995), we held unconstitutional a university’s discrimination in the disbursement of funds to speakers on the basis of viewpoint. Most notable, perhaps, is our famous opinion in New York Times v. Sullivan (1964), holding that paid advertisements in a newspaper were entitled to full Amendment protection.” In other words, the Court had a history of protecting money as free speech. As for the pooling of money not being speech Scalia points to the Declaration of Independence: “And for the support of this Declaration, we mutually pledge to each other our Lives, our Fortunes, and our Sacred Honor.” If pooling money is not constitutional then “Congress would be empowered to enact legislation requiring newspapers to be sole proprietorships, banning their use of partnerships or corporate form.” As for abridging corporation’s money as free speech, the Court has long recognized corporations as people. Although corporations cannot vote or run for office, they are taxed and own land. Here is a list of several cases where the Court has held the constitution applies to corporations: Bank of United States v. Deveaux (1809), Louisville, Cincinnati, and Charleston Railroad v. Letson (1844), Marshall v. Baltimore and Ohio Railroad (1853), Santa Clara v. Southern Pacific Railroad (1886), Smyth v. Ames (1898), Hale v. Henkel (1906), Russian Volunteer Fleet v. United States (1931), United States v. Martin Linen and Supply Company (1977), Citizens United v. FEC (2010), and Burwell v. Hobby Lobby (2014).

The Left would love to create an Amendment to the Constitution to end corporate personhood, but then they cannot be taxed or the government cannot seize property for eminent domain reasons. Is that truly what the Left wants? As Justice Thomas correctly points out in his McConnell dissent “why the bribery laws are not sufficient” to overcome the concern of corruption and quid pro quo actions in our election process does not make sense? Thomas also points out “Media corporations are also influential” over elections. Newspapers routinely endorse local and federal candidates to “influence people”. If the press is “too influential” what is to stop Congress to regulate our press from writing “biased” or “slanted” news stories. Besides, McConnell was truly about protecting incumbents as well as stopping “attack ads” on TV. Sure, we are tired of “attack ads”, but like it or not that is free speech protected by the First Amendment. Corporations considered as people and money concerns over free speech only seems to an issue in campaign finance, the Court does not seem to question these principles in any other type of case.

Sunday, October 29, 2017

The Evolution of Substantive Due Process (Part II)

In Skinner v. Oklahoma in 1942 the Court added the fundamental right of procreation to the list of substantive due process rights. In 1952 in Rochin v. California the Court declared a fundamental right “to bodily integrity” to be among our unalienable rights. In 1954, the Court held that the “separate but equal” doctrine was unconstitutional for education (although an argument can be made that the Fourteenth Amendment was designed, in part, to stop segregation) – (Bolling v. Sharpe and Brown v. School Board); in 1967 the Court held that interracial marriage was constitutional (Loving v. Virginia); in 1972 in Eisenstadt v. Baird the Court held the right to “contraception” was fundamental; in 1973 the Court held that abortion should be added to the list of fundamental rights (Roe v. Wade); and most recently the Court held that that gay sex (The Court in Lawrence v. Texas did not say homosexual sex is a fundamental right, but it overruled Bowers v. Hardwick which said homosexual sex was not a fundamental right, so they implied gay sex is a right) and gay marriage (Obergefell v. Hodges) were elevated to fundamental rights. The Court has also held that personal control over medical treatment and physical confinement are fundamental rights.

In the 1961 case Mapp v. Ohio that Court held that the Fourth Amendment’s illegal seizure clause applied to the states (not just federal). However, in what seemed to be an innocent decision, the Court twice used the words “right of privacy” to generalize the rights protected under the Fourth and Fifth Amendments. This would become important when the Court decided Griswold v. Connecticut in 1965. The Court would elevate the “right to privacy” to a fundamental right in Griswold. However, privacy is a very broad and ambiguous right. To hold that all forms of privacy are protected led to the subsequent decisions that would allow abortion, homosexual sex, and gay marriage be elevated as fundamental rights. All private sexual behavior is not free from restrictions in our liberty (incest, prostitution, rape, etc. are subject to state police power).

There have been a few attempts by the Court to control and better define what constitutes a fundamental right. In the 1934 case Snyder v. Massachusetts the Court said rights are “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” In 1937 the Court called a fundamental right as one that is “implicit in the concept of ordered liberty” in Palko v. Connecticut and in 1977 the Court held a fundamental right as one “deeply rooted in the nation’s tradition and history” in Moore v. East Cleveland. In 1997, in Washington v. Glucksberg the Court would not go as far as allowing “the right to die” which encompassed “assisted suicide” as a fundamental right. In the decision Chief Justice Rehnquist said we must “exercise the utmost care whenever we are asked to break new ground in this field” of fundamental rights. Rehnquist and the majority would hold that “the right to die” and “assisted suicide” is not “consistent with the Nation’s history and constitutional traditions.”

The 2000 case between Troxel v. Granville was interesting. The majority held that parents had the fundamental right to make decisions concerning the care of their children. That is not an overly surprising decision based on how Constitutional Rights are handed out like candy, but what is interesting is Scalia’s dissent. Scalia holds that “a right of parents to direct the upbringing of their children is among the unalienable rights”. But Scalia shows restraint from using the Ninth Amendment to elevate this right. Scalia says about the Ninth Amendment “even farther removed from authorizing judges to identify what they may be (rights)” when discussing what fundamental rights to elevate. Hence, other than restraint, there is nothing really stopping the Court from elevating fundamental rights for political reasons. Scalia, even if he thinks something is a fundamental right, he will not elevate it unless it is clearly written in the Constitution. Sure, the Court has placed some “deep rooted in American history and tradition” considerations for elevating fundamental rights but that did not stop the Court from elevating gay marriage (hardly an American Tradition) to a fundamental right. Some say the Court elevated “marriage” as the fundamental right, but gay marriage did not meet the definition of traditional marriage. Hence, the fundamental right established by the Court was “gay marriage”.

So there you have it, a brief history of fundamental rights incorporated in our constitution via the interpretations of a few judges. I find it odd that the freedom of contract is no longer recognized as a fundamental right, but abortion and even the right to have contraception remain fundamental. The Court practiced some restraint in Glucksberg and a few other cases. In Flores the Court rejected several fundamental rights including “freedom from physical restraint” and “the right of a child to be released from all other custody into the custody of its parents, legal guardian, or even close relatives.” In Gonzalez v. Raich in 2007 a district court refused to elevate “the right to use marijuana to preserve bodily integrity, avoid pain, and preserve life” as a fundamental right since only 10 states had medical marijuana laws (not enough to say it is deep rooted). Raich can be overruled since many more states are passing medical marijuana laws over the past decade.

Thursday, October 26, 2017

The Evolution of Substantive Due Process (Part I)

The Substantive Due Process doctrine is lawyer jargon and in essence it is when the Supreme Court reads “fundamental rights” into its decisions that are not located anywhere in the Constitution. These “fundamental rights” are inferred from either the Ninth Amendment or the “due process” clause of the Fourteenth Amendment. Actually, “fundamental rights” should be guaranteed through the “privileges and immunities” clause of the Fourteenth Amendment but that clause was essentially (and incorrectly) written out of the Constitution in the Slaughter House cases in 1873 (Just five years after the Fourteenth Amendment was added to the Constitution). To understand which rights are “fundamental” or privileges please read my article: “The Best Non-Supreme Court Decision: Corfield v. Coryell”. Coryell coupled with the Civil Rights Act of 1866 best outlines these unalienable or fundamental rights for two reasons: Coryell gives insight into the thoughts of our founding fathers who adopted the Constitution and the Civil Rights Act of 1866 gives insight into the purpose behind the Fourteenth Amendment.

The first Substantive Due Process decision by the Supreme Court was the infamous Dred Scott case in 1857. In this case, the Court held that African Americans have no rights (even free blacks) under the Constitution. Obviously there is no such statement in the Constitution, the Constitution is “color blind” as Justice Harlan said in his dissent of Plessy in 1896. Hence, every future substantive due process decision has the dubious distinction of being a principal or doctrine founded under Dred Scott.

The doctrine disappeared for about a half-century until 1905 in Lochner v. New York where the Court held that our fundamental rights included the “freedom of contract”. The Court struck down a New York statute that tried to mandate a 10 hour work day and 60 hour work week for bakers. The Court held that an employer and employee had the right to agree to any contract for work hours. Of course, “freedom of contract” is nowhere to be found in the Constitution, but it can be found in the Civil Rights Act of 1866. And “freedom of contract” is deep rooted in American history and tradition. The Lochner Era Court would use the “freedom of contract” to strike down economic regulations by state governments for 30 years. The concept of “freedom of contract” would be overturned in 1937 in West Coast Hotel v. Parrish when the Court upheld work hour limitations for women and children. Of course Parrish was discriminatory because it made it almost impossible for women and children to find work since no such limitations were placed on men. However, the Court had a history of being discriminatory against women and quite frequently used “expert” testimony and data prepared by men to show that women were “inferior” (See Bradwell v. Illinois or Mueller v. Oregon).

The Lochner Era Court had two other significant decisions: Meyer v. Nebraska (1923) and Pierce v. Society of the Sisters (1925). In Meyer the Court held “Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” In Meyer the Court struck down a law that prohibited the learning of a foreign language before the age of 10, but in doing so it elevated numerous “fundamental rights” not found in the Constitution. In Pierce the Court held the fundamental right for parents and guardians of children to “direct the upbringing and education of children under their control.” Many of these fundamental rights outlined in Meyer and Pierce are still law today.