Tuesday, August 22, 2017

Antifa is Why We Should Not Erase History

What in the world is going on? I have never lived in such turbulent times. Politics are crazy with Trump firing someone every week. The media continues to paint fake narratives to neutralize the Trump presidency. Major terrorism attacks seem to happen every week. North Korea and Iran have nuclear bombs and are threatening to use their power.

The assault on free speech is simply concerning. Most of the free speech assault is a complete overreaction to the Trump Presidency. For instance, many and the media are convinced Trump is a White Supremacist, so now there is an assault on free speech. How do people make this connection? Well, Trump only disavowed all types of hate and did not single out White Supremacists. Therefore, Trump must be a Nazi. The Left’s answer to Trump and his supposed White Supremacist followers: Antifa.

The past decade there have been dozens of cases of conservative pundits being silenced at our public and private higher education institutions. But since Trump has taken office, the assault on free speech has evolved to another critical level. Now it seems the many that are unhappy with our history simply want it erased from our memories. The first step is to remove confederate statutes. But what is the next step: eliminating the Confederacy from our history books and then omitting our founding fathers who were slave owners? That is not a big leap. It was not long ago that many schools banned books such as Huckleberry Finn because it used the “N word”. So why would it be a surprise to ban books about people who were slave owners? Yet, liberals have no qualms with basic cable TV shows with nudity and graphic language. Or kids video games that includes all levels of graphic violence and killing. We cannot pick and choose which free speech we can tolerate and which we cannot. It does not work that way.

We have left the realm of realism. One day I was discussing the movie Good Will Hunting with some religious folks who would have enjoyed the movie if it did not have so much profanity and crime. I told them the movie would not have been realistic if it did not contain those elements. I told them not everyone lives in a Leave it to Beaver shell of a life. Well, Huckleberry Finn would not be realistic without the N-Word and history would not be realistic if only “good events” are told.

So, what is the liberal answer to Trump and his supposed White Supremacist backers? Antifa. Antifa is a radical militant leftist group that may stand for good causes such as defending people from racism, homophobia, and sexism in our society. However, Antifa is also on the wrong side of issues such as being anti-capitalism or on sex issues such as abortion. Violence is not the answer to solve complex problems such as hate and bigotry in our country. Violence will actually have the reverse effect because it pours gas on the fire. Antifa violence will only help to indoctrinate more White Supremacists. Antifa bully tactics to erase history will also work to indoctrinate more White Supremacists. I have never understood how groups of people that may have been the target of violence use violence to gain revenge. This is liberal righteousness. This is what happens when a person or a group of people believe they are on the right side of history. Of course, Hitler thought he was on the right side of history. Eugenicists thought they were on the right side of history. And the South thought they were on the right side of history. Antifa is over the top hiding behind the guise of righteousness. Antifa is also a hate organization who hates capitalists, hates people that oppose climate change, hates people who are anti-abortion, and they hate Americans who fly the United States Flag in their yard. Antifa has basically turned into an anti-American organization. Antifa has replaced the confederate flag of hate with their own flag of hate. This is precisely why we should not erase history, because history has a way of repeating itself. For example, we should never trust any group, organization, or faction within a republic who dons their own political flag. Beware, Antifa is no different than the hate groups they denounce. Trump is right to denounce all groups of hate which includes Antifa and White Supremacists. Why aren’t media outlets denouncing Antifa and why are they giving them a platform? What in the World is going on? This is dangerous and we should all be leery of what is going on in this country.

Beware of groups, like Antifa, who want to erase history. Beware of groups, like Antifa, who don a political flag. Beware of groups, like Antifa, who hide behind hoods. Beware of groups, like Antifa, who want to silence free speech. Beware of groups, like Antifa, who resort to violence. Beware of groups, like Antifa, because they are mostly anti-American. This is no different than tactics used by the Slave owning South, the Ku Klux Klan, or Nazism in Germany.

Saturday, August 19, 2017

Masterpiece Cake Shop v. Colorado Civil Rights Commission Amicus Brief (Part II)

2. First Amendment: Free Speech and Expression

Masterpiece Cake Shop has faced government intervention and restraint for practicing its Fundamental Right to protest on its own property. Why should Masterpiece Cake Shop be denied the right to protest what it perceives as being an attack on its Religious Liberty? Masterpiece Cake Shop has a Fundamental Right to protest gay marriage through the denial of service even if people find their actions to be repugnant and repulsive. This type of speech is protected. In Snyder v. Phelps (2011) this Court held that a hateful and repugnant protest at the funeral of a military soldier was lawful. The difference between these two cases is that Snyder took place on public property. But shouldn’t persons be allowed to practice their religious liberty by showing their views, opinions, and personalities on their own property? This Court has always sided on the side of free speech and expression unless the state has a “compelling interest” to abridge that right: Flag Burning (Texas v. Johnson, 1989) and Cross Burning (R.A.V. v. St. Paul) are a few cases where despicable conduct was protected. Of course, the speech in this case is not even remotely controversial as the cases highlighted above.

A wise man said, “Where the First Amendment is implicated, the tie goes to the speaker, not the sensor” (FEC v. Wisconsin Right to Life, 2007). James Madison said, “the censorial power is in the people over the government, and not in the government over the people” [New York Times v. Sullivan, 1964]. We also know the speech conducted in this case by Masterpiece Cake Shop was of the public form. In Snyder v. Phelps the Court held, “Speech deals with matters of public concern when it can be ‘fairly considered as relating to any matter of political, social or other concern in the community’ [Connick v. Thompson, 2011] or when it ‘is subject of legitimate new interest; that is a subject of general interest and of value and concern to the public’ [San Diego v. Roe, 2004]”. Public speech has more protections than private speech since this Court said this of public places: “such space occupies a ‘special position in terms of First Amendment protections’” [United States v. Grace, 1983]. Furthermore “the point of all speech protection is to shield just those choices of content that in someone’s eyes are misguided or hurtful” [Hurley v. Irish American Gay, Lesbian and Bisexual Group of Boston, 1995]

I would also argue that the speech used by the Colorado Commission to enforce CADA has little Constitutional value because it is a false factual statement defaming a private citizen of being discriminatory when in fact they have no proof of any such conduct. The Court does not protect such speech: “There is no Constitutional value in false statements of fact” [Gertz v. Welch, 1974]; “The erroneous statement of fact is not worthy of Constitutional protection” [Time Inc v. Hill, 1967]; “False factual statements possess no intrinsic First Amendment value” [United States v. Alvarez, 2012]; and “of course, demonstrable falsehoods are not protected by the First Amendment in the same manner as truthful statements” [Herbert v. Lando, 1979]. The reason false statements are not protected is because “False statements of fact are particularly valueless; they interfere with truth-seeking function of the marketplace of ideas, and they cause damage to an individual’s reputation that cannot be easily repaired by counter speech, however persuasive or effective” [Keaton v. Hustler, 1984]. Also, religious groups or persons facing consequences from CADA “might well conclude that the safe course is to avoid controversy” which would “dampen the vigor and limits the variety of public debate” [NY Times v. Sullivan, 1964] cited in [Miami Herald v. Tornillo, 1974]. In other words, religious folks may not practice their free speech in fear of bad publicity of being labeled as a racist for defending their religious beliefs. No law should stifle free speech. After all, “The right to receive information and ideas, regardless of their social worth, is fundamental to our free society.” [Stanley v. Georgia, 1969] Furthermore, Justice Marshall said, “Our whole constitutional heritage rebels at the thought of giving government the power to control our minds” [Stanley v. Georgia, 1969]. One can extrapolate the meaning of that statement to include legal actions or expressions such as a protest. Finally, “But whatever the reason, it boils down to the choice of the speaker not to propound a particular point of view, and that choice is presumed to lie beyond government’s power to control” [Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston Inc., 1995]. Sure, “over time, the public accommodations laws have expanded to cover more places” [Boy Scouts of America v. Dale, 2000] and businesses of all kinds to prevent discrimination of protected groups. But these laws never considered the equal protection rights of business owners when customers express public speech opinions and viewpoints that differ from their creed. Accommodation laws never considered the Fundamental natural rights of business owners to protect themselves from customer political, social, and legal opinions.

In United States v. Stevens (2010) the Court outlined exceptions to free speech: Obscenity [Roth v. United States, 1957], defamation [Beauharnais v. Illinois, 1952], fraud [Virginia Pharmacy Board v. Virginia Citizens, 1976], incitement [Brandenburg v. Ohio, 1969], and speech integral to criminal conduct [Giboney v. Empire Storage and Ice Company, 1949]. The CADA civil rights commission, by making false factual statements defamed the character of a private citizen without any proof is certainly not protected by the First Amendment for two reasons: 1. False factual statements are not protected and 2. Statements that defame private citizens are not protected (Gertz v. Welsh, 1974).

The question is: do we want to live in a country dictated by social justice and political correctness or do we want to live in a country where the Constitution and tolerance are the rule of the land. “In public debate we must tolerate insulting, and outrageous speech in order to provide more ‘breathing space’ to the freedoms protected by the First Amendment” (Boos v. Barry, 1988). “Speech cannot be restricted simply because it is upsetting” (Snyder v. Phelps, 2010). “The government may not prohibit the expression of an idea simply because society find the idea itself offensive ore disagreeable” Texas v. Johnson, 2003).

This Court would not have accepted this case if Masterpiece Cake Shop was not sincere about their Religious beliefs and rights. And let’s not forget that most people would not turn away business if it was not an important issue to them. If true, this would rule out discrimination or any equal protection violations that CADA may imply against Masterpiece Cake Shop.

Most customers going to places of business do not put forth social, racial, and political opinions. Customers generally go to businesses and buy their products without expressing any controversial opinion or viewpoints. But when customers place forth opinions that violate the creed of businesses, they should have the right to deny service. Equal protection of the laws should also apply to business owners, not just customers as specified in CADA. The Court made a similar decision in Boy Scouts of America (BSA) v. Dale (2000). Since Dale’s lifestyle conflicted with the creed of the BSA, the Court held the BSA was not discriminating by refusing a job to Dale. Although accommodation laws did not apply to the BSA case, it is still relevant since the customer is voicing an opinion in disagreement with the creed of the business in the Masterpiece Cake Shop case. Accommodation laws simply do not consider customer opinions and viewpoints, and that is wrong. And the Colorado Anti-Discrimination Commission is the wrong avenue to decide these cases because it is political and not legal panel. The commission has a history of siding with what they perceive as the most disenfranchised group. That is not justice, it is social justice and political correctness at work in our society denying business owners and unprotected classes of their Fundamental Rights.

3. First Amendment: Religious Freedom and the Free Exercise Clause

Social justice and political correctness have absolutely no tolerance for religious freedom of any kind. There is a simple reason for this: Controversial social and political Fundamental Rights elevated by this Court conflict with enumerated rights such as religious freedom. Should elevated rights conflict with enumerated rights? Perhaps it is a necessary evil. But laws and the Court have a sworn duty to protect religious liberty.

This country was founded on Religious freedom and it is “deep rooted in American history and tradition” (Glucksberg, 1997). Religion has been on the right side of discrimination issues throughout our history (slavery and woman’s suffrage). For these reasons, natural rights like the freedom of speech and religious liberty must be judged using strict scrutiny and therefore there must be a “compelling state interest” to abridge these rights.

This Court has routinely sided with both religious beliefs and conduct. The Court has recognized Saturday as the day of Sabbath (Sherbert v. Verner, 1963); the use of hallucinogens for religious customs (Church of Lukumi Babalo Aye v. City of Hialeah, 1993); and the right for animal sacrifices for religious customs (Gonzalez v. O Centro Espirita Beneficente Uniao do Vegeta, 2006). Hence, it is not uncommon for the Court to find exceptions to state and federal laws to accommodate religious liberty.

The defense argues: people will use religion to justify discrimination against sexual orientation. This argument has been refuted by this Court in Sheerbert and Gonzales. In Gonzales, Chief Justice Roberts said “in Sherbert, for example, we rejected a slippery-slope argument similar to the one offered in this case, dismissing as ‘no more than a possibility’ that the state’s speculation ‘that the filing of fraudulent claims by unscrupulous claimants feigning religious objection to ‘Saturday work’ would drain the unemployment fund”. Besides, most business owners would never turn away business, even on principle. Case in point, during the Jim Crow Period Southern businesses rarely turned away black customers, they had them accept “separate” accommodations. African-American money was acceptable, it was their skin color that was objectionable.

Justice Scalia outlined his fear of people using the guise of Religious liberty to avoid criminal laws in Human Resources of Oregon v. Smith (1990). Scalia’s fears do not apply to the Masterpiece Cake Shop case for several reasons. First, Gonzales does not overrule Smith but Chief Justice Roberts says the Courts are obligated to decide religious freedom cases one by one, not in general as Scalia did in Smith. Secondly, all the exceptions (fears) outlined by Justice Scalia are crimes, generally with the violator profiteering. Masterpiece Cakes is not profiting by turning away business. Finally, the Religious Freedom and Restoration Act (RFRA) was passed to supersede the precedent set in Smith.

The power of the RFRA is not absolute. In City of Boerne v. Flores (1997) the Court held a city statute to protect historic landmarks did not violate RFRA or the Religious Liberty of a Catholic Church being denied an opportunity to expand it facilities: “it does not follow that the person’s affected have been burdened anymore than other citizens, let alone burdened because of religious beliefs.” Furthermore, zoning laws “burden a large class of individuals”. In other words, the statute in Flores was both congruent and proportional because there was neither a pattern of discrimination and the penalty for failing to meet the statute was proportional for everyone. I would argue that CADA is neither congruent or proportional. CADA has been shown to discriminate against religious customers and finally is it proportional or fair for a religious person to be classified in exactly the same light as a white supremacist?

In Lee v. Weisman (1992) the Court held “The Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise”. I would contend the opposite is also true that government policy cannot coerce person’s to abandoned their religious beliefs. In Van Order v. Perry (2005) the dissent contends “suing a state over religion puts nothing in a plaintiff’s pocket and can take a great deal out, and even with volunteer litigators to supply time and energy; the risk of social ostracism can be a powerful deterrent.” The same applies to Masterpiece Cake Shop in this case. They are being criticized by a large populous of the public as being haters, racists, and bigots. They have received far more negative press than positive press for standing up for their Religious principles. And, of course, this case has not put a penny in Masterpiece Cake Shop’s registers.

Tuesday, August 15, 2017

Erasing History

The events this past Saturday makes me sad to be an American. It is hard to believe this much hate still exists in our country. It is even more puzzling the whole ordeal started over a Robert E. Lee statue. Apparently, the local government decided to remove the statue because it represents “hate” which I found ridiculous, but unfortunately White Supremacists validated the local government’s concern. Both sides are wrong, it is not right to erase our history over political correctness and of course any argument to keep the statue for reasons of racism, bigotry, and hate is just plain stupid.

The debate over the removal of a Robert E. Lee statue should not have been about “hate”, but the precedent this sends by erasing a portion of our history. It is dangerous to erase history because these are events we should never forget, but yet most Americans are unaware or ignorant about our historical past. We should never forget the struggle of the Civil War and we should never forget the issues over which the Civil War was fought. Slavery is a brutal fact about America’s scared past and that is something we should never forget.

Robert E. Lee was a slave owner and by many accounts he was a harsh one at that. But Lee was a big part of our national history. Nobody gave the South a fighting chance to defeat the North, but it was Lee’s extraordinary leadership skills that turned the Civil War into a four-year struggle that killed over 600,000 Americans. Lee outclassed one Northern General after another. Finally, Ulysses S. Grant realized the biggest advantage the North had was in numbers. Grant used this advantage to defeat Lee (at the expense of enormous casualties). Lee made history, even if it is was negative history that we all would like to forget.

If we decide to erase all the Confederate statues around the country, what is next? Where do we draw the line on erasing history? Do we eliminate Confederate references in our history books? Of course, four of our first five presidents are easy targets because they too were slave holders (Washington, Jefferson, Madison, and Monroe). Do we eliminate their statues and erase their names in our history books to be politically correct? But to be fair, we cannot stop there. Why not eliminate the following persons from our history: Teddy Roosevelt (Eugenics believer), Margret Sanger (Eugenics believer), Oliver Wendell Holmes (Eugenics believer and all around racist and bigot), Woodrow Wilson (He segregated the government), Franklin Delano Roosevelt (internment of Japanese Americans), and Harry Truman (Dropped two atomic bombs intentionally killing hundreds of thousands of innocent civilians). Sure, these men and women may have done some good things for society, but many of their actions were controversial to say the least. This would leave only Lincoln left on Mt. Rushmore. Of course, many of Lincoln’s actions as President were also questionable because they violated the Constitution such as suspending a writ of habeas corpus. Lincoln used this power to detain people for no reason and deny them due process of the law (not much different than slavery). Anyone could make an argument to eliminate anyone from our history. Where is line drawn? Selectively erasing history is a dangerous precedent.

Today, it is easy for most Americans to see slavery for what it was: a brutal and racist institution that violated the rights of millions of slaves in our history. But, that distinction was not so easy to make for a vast majority of Southerners throughout a large portion of our history. I would suspect a vast majority of person’s living today that view slavery as evil would have a completely different view of the institution if they were born in the 1800s in the American South. The environment and culture would negatively and incorrectly shape our thoughts and point of view on the subject. This is why history is important and why we should never forget. History has a way of repeating itself and we surely do not need that. Removing the Robert E. Lee statue is not going to change the minds of White Supremacists to all the sudden love their neighbors and accept a diverse culture. That is simply wishful thinking. That statue is now a reminder, to me, the scary fact that people who had no ties to slavery and the Civil War still defend those policies in modern America. That is why the statue must remain so we never forget the evils of our past and present.

Saturday, August 12, 2017

Masterpiece Cake Shop v. Colorado Civil Rights Commission Amicus Brief (Part I)

The Colorado Civil Rights Commission enforcing the Colorado Anti-Discrimination Act (CADA) fails to meet its burden of proof when it decided Masterpiece Cake Shop discriminated against a gay couple wanting a wedding cake for five reasons (other than those reasons being contended on behalf of the Cake Shop’s legal counsel: Free speech cannot be compelled and free speech covers artistic views).

First, the actions of Masterpiece Cake Shop were not discriminatory in any way. It is instead an example of social justice and political correctness gone horribly wrong. Unfortunately, it is not uncommon to have discrimination claims over simple moral and ethical disagreements. If Masterpiece Cake Shop is discriminating than it can be easily conferred that CADA is also discriminatory.

Secondly, this case is about clashing Fundamental Rights. The elevated Fundamental Right of gay marriage and equal protection versus free speech and religious freedom. If there is no discrimination then equal protection does not apply. Hence, it becomes a case between a controversial and conflicting elevated right versus natural law enumerated rights.

Third, this is a case about a person’s First Amendment right to protest which cannot be abridged without a compelling government reason. CADA is flawed for several reasons. First, it only protects customers from discrimination and not business owners (only customers can claim discrimination). Secondly, CADA fails to address the issue of customers putting forth controversial opinions and viewpoints that are in direct violation of the religious beliefs or creed of business owners. Finally, since the Colorado Anti-Discrimination Commission is political their history is to side with the most perceived disenfranchised party and not the law. Their motive is to protect against discrimination and not protect Constitutional rights of unprotected classes. For this reason, the speech of the Colorado Commission is comprised of many false factual statements that can defame the character of private citizens. For instance, since Masterpiece Cake Shop practice of its religious and free speech liberties are classified in the same manner by the Colorado Commission as someone who truly discriminates, this is a false factual statement and can unnecessarily defame the character of a private citizen.

Fourth, Religious liberty is not truly protected by CADA and fears of unscrupulous use of religious freedom to deny protected classes their Fundamental Rights are unfounded. CADA fails to pass congruent and proportionality tests since the commission has a history of siding with the most disenfranchised group. Religious liberty cannot be denied without a compelling government reason.

Finally, CADA fails to meet a simple rationale basis test of undue burden when it should be required to meet strict scrutiny demonstrating a compelling state interest to abridge both freedom of speech and religious liberty.

1. Discrimination

The day after a horrific act of terror attack killed 49 persons at an Orlando Night Club I was watching CNN’s Anderson Cooper (he was on site covering the story). Cooper interviewed Florida Attorney General, Pam Bondi, and I am paraphrasing the conversation that followed. Cooper asked Bondi about the events and to reflect. Of course, Bondi responded in a shocked, surprised, and mournful manner. She was hurt and upset over both the hate and waste of life. Cooper followed up by asking Bondi “how can she be so upset over these events when she does not even support gay marriage?” That folks, is unfortunately where we are at in our society. We are so embroiled in our public debate over social issues we have become brainwashed into believing conservatives, religious followers, and Republicans who do not agree with gay marriage must want gay people to be slaughtered. It is extremely disconcerting that a respected news anchor would ask such a question. Does Cooper really believe that people disagreeing over gay marriage want the LBGT community slaughtered in cold blood? I do not think Cooper would be happy if someone shot up a Church even though they disagreed with his views over gay marriage. Can’t Cooper distinguish between a disagreement over moral and ethical standards and true hate and terrorism? I find it hard to believe that any true Christian would find any gratitude in the events that transpired in Orlando. I cannot name a single American who saw anything positive in that tragedy. I saw lots of tears, but not a single cheer. But this type of vitriol is not uncommon and exists in this case: a conflict between religious and social-civil rights. Many of the comments and remarks over this case have devolved calling Masterpiece Cake Shop racist, bigoted, and hateful. I have a growing concern that many in the LBGT community believe that the denial of a wedding cake is nothing more than some deep-rooted anger, hatred, racism, and bigotry by religious followers towards gays that simply does not exist. It a disagreement over moral and ethical standards between religious and social-civil rights, and that is it. The fact that the gay couple in this case could not see this difference and even filed a complaint is even more concerning. Why would the gay couple want to force the religious owner to alter their beliefs to accommodate their needs? This country has a history of following a vicious cycle of events. Generally protected classes of citizens in America have forgotten their struggles and over time commit the same types of discrimination on others. Shortly after feminist won suffrage they supported eugenics in the twenties and in the seventies tried to overturn laws providing veterans (men) better job opportunities and healthcare. The reason Proposition 8 failed in California was because the vast number of the religious African-American population sided against gay marriage. We fail to have self-awareness to understand that we are doing the same thing we did not like being done to us to someone else. Two wrongs do not make a right. Vengeance is never the answer. The answer is to have patience and tolerance and to understand that a lot of people will have different viewpoints and opinions that differ from our own and that does not mean they are discriminating. We need to accept our point of view is never 100% correct nor will ever be 100% accepted.

Does the First Amendment prohibit discrimination? No, it does not. Most discrimination is protected speech. In fact, many groups of people depend on discrimination for their existence: female athletics, women’s groups and schools, men’s organizations and schools, military combat restrictions on women, age limits to qualify for certain activities and so forth. The equal protection clause of the Fourteenth Amendment and the Commerce Clause have been used by the Court to curb discrimination, not the First Amendment.

The Colorado Anti-Discrimination Act (CADA) prohibits discrimination in public accommodations including businesses of all kinds. CADA defines discrimination against protected classes of citizens on the basis of color, national origin, marital status, creed, race, gender, religion, and sexual orientation. The dictionary defines discrimination similarly, “the unjust or prejudicial treatment of different categories of people or things especially on the grounds of race, age, religion, or sex.” CADA’s marital status designation conflicts with the Colorado Constitution which defines marriage as being between one man and one woman. CADA allows no exceptions to its statute and therefore, expects a business owner to forgo their Fundamental Religious Liberty and be compelled to uphold practices they do not believe. In this sense, CADA conflicts with the Religious Freedom and Restoration Act of 1993 (RFRA) which applies to all federal, state, and local laws. Masterpiece Cake Shop was merely practicing its ideals, which are the same ideals found in the Colorado Constitution and RFRA. Chief Justice Roberts said, “Congress had a reason for enacting RFRA, too” (Gonzales v. O Conto Espirita Beneficente Unioa do Vegetal, 2006). In today’s world of social justice and political correctness discrimination is a harsh label to apply to any one person or group. Being labeled as discriminatory is the same as being labeled as a bigot or racist by today’s standards even though that is not how the word is defined. Discrimination and labels that are associated to the word are often thrown around recklessly. To discriminate there must be a pattern and history of that behavior for definitive proof. Every instance of political correctness mistakenly places a label of discrimination, hate, bigotry, and racism on a person or group. For instance, someone referring to terrorism as “extreme Islamic terror” is labeled as an Islamaphobe bigot, racist, and hater of Muslims. Americans supporting actions against illegal immigrants are also considered bigots and racists. Americans supporting a temporary ban on immigration from Muslim countries are also all classified as haters by a vast number of our populous. Sure, some of the people supporting these measures may be true discriminators, but a vast majority are not. Most simply want to keep America safe from terrorism and see illegal immigration as a drain on our economy. We need definitive proof before we go around labeling someone as Hitler. This case is no different. The label of discrimination placed on the Masterpiece Cake Shop has devolved into other unfair labels and comparisons without any proof and without a history or pattern of any such behavior. Differing viewpoints, morals, or ethical standards does not necessarily constitute discrimination although it may violate what someone may perceive as being political correct. This case involves the conflict between two Fundamental Rights (Religious Liberty and Equal Protection), it is not a battle over discriminatory views. Maybe the word abridge can be used instead of discrimination. Abridge means to curtail rights or privileges, it does not mean to prohibit rights as discrimination implies.

Social justice to put an end to discrimination is a necessity. But social justice can also be an evil by wrongly asserting every act of political correctness constitutes some form of discrimination. It is just as discriminatory to force or compel someone to practice what they do not lawfully believe. Discrimination claims in this case cut both ways. The only reason this is a complicated case is due to the fact that unfair labels associated with discrimination can make religious liberty conflicts with social or civil liberties ugly and polarizing on the national level. It would be prudent to have a fair definition of discrimination (maybe abridge). A definition that would not label most of our populous as haters, bigots, and racists, but one that distinguishes between real political and legal debates over morals and ethical standards and true acts of discrimination. Since Roe v. Wade, this Court has had to deal with conflicting civil or social Fundamental Rights with natural or traditional enumerated Fundamental Rights. This trend will continue with the Obergefell v. Hodges decision. I believe the Court has a right to elevate Fundamental Rights through the Ninth or Fourteenth Amendments (although I believe the privilege and immunities clause makes more sense to elevate rights over the due process clause, but that would take overruling the Slaughter House cases). The problem in this case, and others like it, is when elevated rights, that are not overwhelming supported by the public, conflict with other enumerated or elevated rights. This issue needs to be addressed by the Court.

Social justice and political correctness confuses anything that may “offend”, “annoy”, or “hurt feelings” with discrimination. Ruling against Masterpiece Cake Shop will open a flood gate of frivolous lawsuits confusing every act of political correctness with discrimination. In Bray v. Alexandria Health Clinic (1993) the Court faced a similar situation. In that case the Court held that the Ku Klux Klan Act of 1871 could not be used against anti-abortion protestors. The Court rightly understood the difference between discrimination against free African-Americans and the dispute between differing moral and ethical views about abortion. The Masterpiece Cake Shop case is no different, it is dispute over differing morals and ethics and is not discrimination. To discriminate Masterpiece Cakes must show a consistent pattern of denying service to gay persons for ANY reason, not just for wedding cakes. Masterpiece Cake Shop would also deny service to a customer wanting to promote anti-American or any anti-religious activity. Would anyone disagree if Masterpiece Cake Shop denied service to a communist group wanting a cake showing the American Flag in flames? Would this also be considered discriminatory against one’s creed?

Would a gay cake shop owner be allowed to deny making a cake for Nazi Parade celebration? A Nazi parade, if peaceful and with a lawful permit, is a legal activity. Would anyone blame the gay or even straight bakery owners for turning away that type of business? It is bad business to have your product associated with controversial groups that would yield bad publicity. But if CADA wants to treat all citizens equally, then the creed of White Supremacist should not be discriminated against either, right? Would a black baker be discriminating to deny making a Confederate Flag cake for a White Supremacist group? Would an Islamic baker be compelled to make a cake for a church group who wants to depict Allah in a bad manner? Would an Atheist cake maker discriminate by refusing to make a Ten Commandants Cake? Maybe not, based on how the CADA commission has ruled on some prior cases. Three Denver Cake bakers were found not guilty of violating creed discrimination of CADA for declining to bake a Christian Cake in opposition to same sex marriage. Social justice and political correctness hysteria in America has declared poor grades discriminate against the intellectually challenged; bad credit discriminates against the poor and unwise spender; and criminal laws discriminate against criminals. It seems everything discriminates.

Obergefell v. Hodges (2015) was a decision that went against the beliefs of a vast number of religious followers from many different religions. This is true for a number of reasons. First, the law changed the traditional definition of marriage found in the Bible that marriage is between a man and a woman. It is always hard to accept when something people believe in with strong conviction is altered. Secondly, Obergefell was not a case about love, but one about government entitlements attached to marriage. For religious follower’s marriage does not discriminate, instead it is the government entitlements attached to marriage are what discriminates. Would gay people still want to be married if government entitlements were not attached to marriage? This question was not answered satisfactorily to religious followers in Obergefell. Marriage is about love, and not about tax breaks. Marriages based on financial tax breaks will not last the test of time. Without love, marriages will eventually end in divorce. Finally, religious followers see Obergefell as a symbol of the Court using social justice and political correctness to justify its decision, not the law. For these reasons, one can understand why Masterpiece Cake Shop is protesting the elevated Fundamental Right of gay marriage.

In Roemer v. Evans, the Court held a Colorado referendum denying the gay community preferential treatment was unconstitutional. If this Court finds that someone who is offended or has hurt feelings deserves protection via social justice and political correctness, then the dissent in Roemer was correct. This would yield preferential treatment to one class of citizens at the expense of another class of citizens. Preferential treatment to protected classes of persons may have the unintended effect of discriminating against another group of unprotected classes.

Wednesday, August 9, 2017

The Most Underrated Chief Justice: Salmon Chase (Part II)

Although he would only serve 9 years as Chief Justice before his death, nearly every one of his decisions was the proper one. In United States v. Dewitt decided in 1869, Chase delivered the unanimous decision restricting the usage of the Commerce clause and the Necessary and Proper clause by denying restrictions on buying certain oil products because it would be beneficial for the government to collect and lay taxes. The Legal Tender cases were a huge part of the Chase legacy. In 1869, the case Hepburn v. Griswold, Chase delivered the majority opinion with a very narrow reading of the Necessary and Proper clause. Chase ruled that although the Federal Government has the enumerated power to “coin money”, that power did not imply that the Federal Government has the power to make “paper money”. Chase argued that in following Marshall’s opinion in McCulloch v. Maryland that using the Necessary and Proper clause would not be “consistent with the letter and spirit of the Constitution.” Since “the States are expressly prohibited by the Constitution from making anything but gold and silver coin a legal tender” Chase argues “This seems decisive on the point that the power to issue notes and the power to make them a legal tender are not the same power, and that they have no necessary connection with each other.” Also, Chase understood as being Secretary of the Treasury, that legal tenders (paper money) were not always redeemed at face value making Chase to proclaim “It is difficult to conceive what act would take private property without process of the law if such and act would not.” Just two years later, for the first time in history, the Court over turned Hepburn in Knox v. Lee. Chase would write in his diary “The consequences of the sanction this day given to irredeemable paper currency may not soon manifest themselves but are sure to come.” In Knox, Justice Strong wrote the majority opinion saying “It is incumbent, therefore, upon those affirm the unconstitutionality of an act of Congress to show clearly that it is a violation of the provisions of the Constitution.” In other words, Congress is Judge and Executioner of ALL laws with no oversight. Legislators need not have to find the words in the Constitution for them to have power of things outside its writings. Strong further argues the Amendments to the Constitution are “powers not enumerated, and not included incidentally in any one of those enumerated”, the amendments “are denials of power which had not been expressly granted, and which cannot be said to have been necessary and proper for carrying into execution any other powers.” In other words, something may not have to be an incidental power of an enumerated power for it to be “necessary and proper”. Strong cites the National Bank as being convenient to lay and collect taxes, but the Court still found it “necessary and proper.” In Strong’s view for the legal tender act to be unconstitutional it would have to be both inappropriate and prohibited. Strong cites the Civil War as an emergency requiring Congress do what is “necessary and proper” to keep the war effort funded. Finally, Strong says “The degree of the necessity for any congressional enactment, or the relative degree of its appropriateness, if it have any appropriateness, is for consideration of Congress, not here.” In his dissent Chase rightly points out that if “the legislature is the sole judge of the necessity for the exercise of such powers, the government becomes practically absolute and unlimited.” Chase was right, by 1884 in Juilliard v. Greenman (after Chase’s death) the Court ruled that Congress can issue paper money for any reason, not just an emergency such as war stating any sovereign power has the power issue paper money. Note how Chase’s decisions do not allow for expansion of government whereas his comrades allow the government unlimited power to expand.

Chase’s two most important decisions were decided shortly before his death in 1873. Although he was too sick to write a dissenting viewpoint in the Slaughter House Cases or in Bradwell v. Illinois once again Chase sided against discrimination. In Bradwell, Chase was the only dissenter in the 8-1 decision that held a woman, Myra Bradwell, was not entitled work as a lawyer simply because she was a women and was therefore, inferior. In the Slaughter House cases, similarly a discriminatory statute placed all butchers in the City of New Orleans under a monopoly of one owner. In both cases, it was held that the privileges and immunities clause of the Fourteenth Amendment did not apply to the practice of a profession. In fact, these decisions practically wrote the clause out of the Amendment making it moot. These were the first Fourteenth Amendment cases. The privileges and immunities clause was there to not only protect blacks against racism but to apply all the Bill of Rights to the states to protect the liberties of all citizens. Chase would die a few weeks later. Chase stood up for blacks, women, and minorities at a time when it was not popular. Chase stood up against discriminatory laws and statutes. Chase stood up for the Constitution at a time when federal government was starting to grow in size and scope and the Court was allowing it. Four years following the death of Chase, the Chase Bank was named in his honor.

Sunday, August 6, 2017

The Most Underrated Chief Justice: Salmon Chase (Part I)

Salmon Chase is underrated both as a Chief Justice and as a citizen fighting for the abolishment of slavery. In 1837, at the age of 29, Chase defended a women named Matilda. Matilda was a runaway slave and her owner wanted her returned to bondage. Chase argued that the Fugitive Slave Act of 1793 was unconstitutional and beyond the enumerated powers of Congress. However, Article IV of the Constitution contains the “Fugitive Slave Clause” stating: “No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation thereof, be discharged from such service of labor; but shall be delivered up on claim of the party to whom such service may be due.” Chase astutely argues “Does this clause confer any power on government, or on any officer or department of government?” Clearly it does not, “The parties to agreement” in this clause “are the states.” Chase says that the government cannot claim the “necessary and proper” clause to carry out the Fugitive Slave Act because that power is not enumerated in the grants of power given to Congress. Hence, Chase says such power is delegated to the states through the Tenth Amendment. Another clause in Article IV of the Constitution says “Full faith and credit shall be given, in each state, to the public acts, records, and judicial proceeding of every other state.” Chase argues that this clause is similar to the Fugitive Slave clause because it also confers no power to the federal government. Why would the founders confer legislative power in one clause of Article IV but not the other? Of course, Chase also argues to free Matilda in the “name of justice, of liberty, and of our common humanity.” Chase lost his case and Matilda was returned to bondage.

In 1842, the Supreme Court upheld the legality of the Fugitive Slave Act in Prigg v. Pennsylvania. Even though the Constitution does not refer to “slaves” the majority in Prigg states that the clause in Article IV is about “slaveholding”. Therefore, the Court ruled that Congress has “exercised powers which were necessary and proper as means to carry into effect rights expressly given, and duties expressly enjoined thereby” to uphold the Act. Of course, in 1857, the Taney Court held in Dred Scott v. Sanford that slave owners could not be deprived of “property (slaves)” without due process of the law. When Chief Justice Roger Taney died in 1864, Abraham Lincoln replaced him with Salmon Chase.

Before becoming Chief Justice, Chase contended that Congress had the power to abolish slaver in the District of Columbia and any U.S. territories. When Chase was unable to make headway into abolishing slavery as lawyer he turned his focus to politics. Chase was instrumental in the formation of the anti-slavery Republican Party. The Republican Party platform in 1856 and 1860 adopted Chase’s views on slavery. Chase was elected governor of Ohio in 1855 and lost the 1860 Republican presidential nomination to Abraham Lincoln. Lincoln would appoint Chase as the Secretary of the Treasury from 1861 to 1864, a position he would hold until being named Chief Justice. Secretary of the Treasury was a tough job during the Civil War but first on his agenda was to hire thousands of women and blacks to serve in the department.

Wednesday, August 2, 2017

The Warren Court: Rightly Decided, but Wrong Rationale

The Warren Court is in many ways an enigma. You have to applaud them for overturning Plessy v. Ferguson in Brown v. School Board which finally ending the “separate but equal” discriminatory practices. This was accomplished using the Fourteenth Amendment’s equal protection clause. However, two cases a decade later, in 1964, the Courts rationale can leave one scratching their head wondering what was the Court thinking. In Heart of Atlanta Motel v. United States and Katzenbach v. McClung the Warren Court rightly upheld the Civil Rights Act of 1964, but did so in a very peculiar fashion. Their decision was consistent with Brown in ending discriminatory practices in the South, but they used the “commerce clause” to reach their verdict instead of applying the Fourteenth Amendment.

The clause in question of the 1964 Civil Rights Act reads: “All persons, shall be entitled to the full and equal enjoyment of the good, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the grounds of race, color, religion, or national origin”. Those facilities include inns, hotels, motels, restaurants, cafeteria, and movie theatres. Congress passed the Act by insinuating discrimination in any of the above mentioned facilities “affects commerce”. That is a reach at best since commerce means the trading of commodities. The Atlanta Motel case applied to lodging and the Katzenbach case applied to restaurants since both refused to serve African-Americans. It is worth noting a similar clause in the 1875 Civil Rights Act was deemed unconstitutional in 1883.

In Atlanta Motel, Justice Clark says “the conditions of transportation and commerce have change dramatically, and we must apply those principles to the present state of commerce”. This is just another way of saying the Court is about to expand the Federal Government’s power. After all, people travelled between states all the time when the Constitution was drafted and at no point was that considered commerce. However, up to the date of this decision the commerce clause had been held constitutional to regulate: gambling (Lottery Case, 1903), insurance (Underwriters case), individual crop control (Wickard v. Filburn, 1942), regulate labor unions (Labor Board v. Jones and Laughlin Steel, 1937), and economic activity including wages and hours (United States v. Darby, 1941). The Court decided that since Congress had a “rational basis” to end discrimination using the commerce clause it was an “appropriate” law. Clark correctly points out “Congress could have pursued other methods” to end racial discrimination (Fourteenth Amendment). Both Justices Douglas and Goldberg concurred with the decision but also correctly add that the Court could have made its decision to end discrimination in both cases via the fifth clause of the Fourteenth Amendment which says: “The Congress shall have power to enforce, by appropriate legislation, the provisions in this article.” The first clause of the Fourteenth Amendment saying everyone has a constitutional right “to be treated as equal members of the community with respect to public accommodations” would be provision enforced by the fifth clause.

In Katzenback, Clark says interstate commerce includes the “movement of persons, goods or information from one state to another.” Clark also contends that Congress has the power to regulate “intrastate activities”. Clark would go on to cite the most controversial commerce clause case, Wickard v. Filburn: Congress has the power to regulate any “substantial economic effect” on interstate commerce. This vague and ambiguous statement has never been clearly defined as to what constitutes “substantial”. The Court merely has to decide whether a Federal law is “rational” to deem it constitutional. Hence, the Court concludes that the law “had a rational basis for finding that racial discrimination in restaurants had a direct and adverse effect on the free flow of commerce”. “The power of Congress in this field is broad and sweeping; where it keeps within its sphere and violates no express constitutional limitation it has been the rule of this court” to uphold these laws.

So instead of properly applying the Fourteenth Amendment for its intended purpose: to stop discrimination; the Warren Court decided to further expand the powers of Congress by redefining the commerce clause. What can’t Congress regulate if they have the power to control local businesses for whatever reason they may see fit? Notice the interstate commerce clause has gone from meaning regulating trade among the states to controlling all aspects of economic activity well beyond trade. The Court had other options to decide this case such as reinstating the “privileges and immunities” clause in the Fourteenth Amendment. The Court could have decided that the “liberty” of American citizens was being violated or restricted. However, instead of giving more power and sovereignty back to the people, the Court decided to yield more power to the Federal government.

Sunday, July 30, 2017

Why Gibbons v. Ogden was a Flawed Decision

Marshall continued his assault on the constitution in his 1824 decision Gibbons v. Ogden. The case involved a New York statute which provided a monopoly to the steamship business on New York waterways. The commerce clause states: “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” Marshall ruled that commerce was much more than “traffic” but was also “intercourse”. Marshall further defined commerce as including the navigation of ships in waterways and overruled the New York statute. Marshall based his decision on the wording in Article 1, Section 9 which states: “no preference shall be given, by any regulation of commerce or revenue, to the ports of one State over those of another.” The next sentence also states: “nor shall vessels bound to or from on State, be obliged to enter, clear, or pay duties, in another.” From this Marshall interpreted the commerce clause to mean not only controlling navigation among states, but it “may be introduced into the interior” of states. Marshall states that the commerce clause would be “useless power” if the federal government could not “pass those lines” within the states if necessary. Marshall would further state Congress’s power to regulate commerce has “no limitations, other than are prescribed in the constitution.” In other words, Marshall can find plenty of latitude to increase Congressional power not prescribed in the constitution (such as this case or McCulloch), but he says Congressional commerce power is only limited by what is prescribed in the constitution. Marshall, later in his opinion, uses the Supremacy clause to answer the question of sovereignty when both states and the federal government have incidental laws regulating commerce that conflict. New York argued since the constitution forbids States from “laying duties on imports and exports proves this power might have been exercised, had it not been expressly forbidden.” Marshall ended this argument by saying “duties on imports and exports” pertained to taxing powers not commerce powers. Well then, by Marshall’s argument the statements: “no preference shall be given, by any regulation of commerce or revenue, to the ports of one State over those of another”; and “nor shall vessels bound to or from on State, be obliged to enter, clear, or pay duties, in another” is about taxing power or discrimination, but it is not about navigation.

By all accounts of the time and dictionaries the definition of commerce means trade. In no instance during the Constitutional Convention (the word commerce appears 34 times in Madison’s notes), in the Federalist papers (63 appearances), or the ratification conventions (Massachusetts – 19 appearances, New York – 8 appearance, Pennsylvania – 8 appearances, North Carolina – 18 appearances, South Carolina – 26 appearances, or Virginia – 74 appearances) is commerce defined as anything more than trade. In no instance is commerce defined as intercourse, manufacturing, agriculture, economic activity, or navigation supremacy. Although Gibbons v. Ogden was a unanimous decision, Justice Johnson wrote a separate decision stating a more conventional definition of commerce (trade). This quote sums up the outcome of the Gibbons v. Ogden decision: “The Marshall Court's broad reading of the Commerce Clause gave it a legal elasticity that was later extended to include federal regulation of railways, airlines, pipelines, television stations, telephone communication, and even racial segregation.” Despite this decision, most federal government expansion in the early part of American history was created through the “necessary and proper” clause and not the commerce clause. This is for two reasons: 1. Marshall’s decision in McCulloch v. Maryland gave the necessary and proper clause even broader appeal than the commerce clause and 2. Most Americans understood the real definition of commerce and believed its scope was very narrow as written in the Constitution despite Marshall’s opinion. It would take until the FDR era for the commerce clause to grow in scope to include regulating anything that is economic.

In Barron v. City of Baltimore in 1833, Marshall may have made his most inexcusable decision. Marshall ruled that the Bill of Rights (the first 10 Amendments) only applied to the federal government, but not to the states. This was of course contrary to what James Madison had in mind when Congress adopted the amendments in 1791. Marshall’s decision led to a nearly 150 year battle between the Supreme Court, States, and the Bill of Rights.

Wednesday, July 26, 2017

Why the McCulloch v. Maryland Decision was Flawed

McCulloch v. Maryland was a landmark Supreme Court decision in 1819. The decision for this case is still relied upon as key precedent for interpreting the “necessary and proper” clause. Chief Justice Marshall put forth the unanimous decision of the Court that determined that the National Bank was constitutional because the “means to obtain the ends” was deemed acceptable for the national government to pursue its enumerated powers for collecting and laying taxes as well as borrowing money.

The battle over the National Bank started over two decades earlier when the National Bank was passed by the Washington administration guided by the tutelage of his Treasury Secretary, Alexander Hamilton. Arguing against the passage of the bank were House leader James Madison and Secretary of State Thomas Jefferson. Madison argued that the constitution’s theory of limit and enumerated powers of the federal government would be “destroyed” by erecting a National Bank. Madison argued further that if a Bank is necessary than the government could control “every object within the whole compass of the political economy” by using creative means to obtain those ends. Madison said that a National Bank was not necessary, but “convenient”. Marshall’s decision would define “necessary” as also meaning “convenient” among other broader definitions. Jefferson argued that “necessary and proper” meant “restraining them [enumerated powers] to the necessary means, that is to say, to those means without which the grant of power would be nugatory.” He further exclaimed that enumerated powers could “be carried into execution without a bank”. Probably the best argument defining the “necessary and proper” clause was provided by Attorney General Edmund Randolph. While Hamilton and Marshall use the “necessary and proper” clause to expand enumerated powers of the federal government to include ANY means to obtain the ends, Randolph rightly points out the key word in the clause is “proper” and not “necessary”. Randolph points out that the word “proper” does not “enlarge the powers of Congress, but rather restricts them.” Proper restricts what is necessary to what is appropriate, correct, right, accepted, conventional, regular, or orthodox. “Necessary and proper” does not purport ANY or ALL means that is necessary to obtain the ends as supported by Hamilton and Marshall. However, Marshall says in his decision “Let the end be legitimate, let it be within the scope of the constitution, and all means which are ‘appropriate’, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitutional, are constitutional.” Marshall uses the term “appropriate” but he classifies appropriate as ANY means to an end that is not prohibited by the constitution. It is highly debatable that a National Bank is the right, correct, accepted, orthodox, and conventional means to lay and collect taxes.

After a huge backlash of negative media following his decision, Marshall wrote a series of articles defending his decision stating “In no single instance does the court admit the unlimited power of congress to adopt any means whatever, and thus to pass the limits prescribed by the Constitution.” However, Marshall’s decision opened the floodgates for the “necessary and proper” clause to be abused by the federal government to expand its powers over the next two centuries. As Madison said “Is there a Legislative power in fact, not expressly prohibited by the Constitution, which might not, according to the doctrine of the Court, be exercised as a means of carrying into effect some specified Power?” Despite this, Madison did not veto the Bank bill as President of the United States in 1816. Madison, argued that he was following “precedent” over 25 years of debate on the issue and hence, he decided to merely conform (although he personally objected). In 1832, President Andrew Jackson vetoed the Bank bill by saying “precedent” can be dangerous. He also stated that “nor can I conceive it ‘proper’ that the substantive and most essential powers reserved by the States shall be thus attacked and annihilated as a means of executing the powers delegated to the General Government.” Jackson further argues “We may not pass an act prohibiting the States to tax the banking business carried on within their limits, but we may, as a means of executing our powers over other objects, place that business in the hands of our agents and then declare it exempt from State taxation in their hands.” Jackson also points out the dangers of Congress having more power: “to make the rich richer and the potent more powerful.” “Many of our rich men have not been content with equal protection and equal benefits but have besought us to make them richer by act of Congress.” “We can at least take a stand against all new grants of monopolies and exclusive privileges, against any prostitution of our Government to the advancement of the few at the expense of the many…” Jackson correctly portrays what happens when Congress is employed with more power and why Marshall’s interpretation of the “necessary and proper” clause was flawed in the McCulloch decision.

Sunday, July 23, 2017

Even Unanimous Decisions on the Supreme Court are Political (Part III)

Consider the 2014 case McMullen v. Coakley as another example of a politically motivated unanimous decision. A Massachusetts statute (Massachusetts Reproductive Health Care Facilities Act – MRHCFA) made it a crime to knowingly stand on sidewalk within 35 feet of the entrance of a clinic or hospital that performs abortions. The Court upheld a similar Colorado law in Hill v. Colorado in 2000 (the buffer zone was much smaller). The purpose of the law was obvious: to prevent pro-life protestors from handing out information, counsel, or to further educate persons going to have an abortion. Massachusetts argues that the law was needed for safety purposes to prevent an escalation of violence. Some Massachusetts Planned Parenthood clinics even use “escorts” who help shield patients from pro-life supporters as they walk from their car to the clinic to suppress free speech further.

However, the majority of the majority (Chief Justice Roberts and the four Liberal Justices – Kagan, Sotomayor, Breyer, and Ginsburg) decided that MFHCFA did not regulate the “content” of speech. In other words, the law was not passed to stifle one group’s free speech (anti-abortion) at the expense of another group’s free speech (abortion). However, they decided the MFHCFA law was still unconstitutional because it regulated speech of any kind by placing barriers in free speech zones such as public streets and sidewalks. Does the majority truly believes that MFHCFA was passed for safety reasons and was content neutral on speech?

According to the majority view, Massachusetts had tried many other, less evasive, safety provisions and methods that failed before enacting MFHCFA. That being said, Massachusetts could not identify a single arrest over a 17 year period of using older, less evasive laws. If this is the case, then this should have refuted the majority’s claim the law was for safety purposes and not to regulate speech content. After all, why would Massachusetts need a more protective measure when there were no previous violations of older laws?

Scalia gave the minority view with Alito, Thomas, and Kennedy concurring. The minority agreed that MFHCFA was unconstitutional, but they go further and say the law was not content neutral and the Court should have overruled the Hill decision. Scalia argues first of all, MFHCFA only “burdens public spaces outside of abortion clinics” and that is obviously discriminatory towards anti-abortion speech. The majority’s position is analogous to “invoking the eight missed human targets of a shooter who has killed one victim to prove, not that he is guilty of attempted mass murder, but that he has bad aim.” Scalia further states that “Protecting people from speech they do not want to hear is not a function that the First Amendment allows the government to undertake in the public streets and sidewalks.” Scalia further contends the majority’s claim that escorts or clinic employees do not engage in pro-abortion speech in restricted areas - the Planned Parenthood website of the Boston clinic in question states: “Become a Clinic Escort Volunteer to provide a safe space for patients by escorting them through protestors to the health center.” The website defines “protestors” as “holding signs, trying to speak to patients entering the building, and distribute literature that can be misleading.” In other words, the job of the escort is to stifle free speech. The protestors are not defined on the website as being a safety concern. Scalia concludes by saying we now have a new test for free speech and the First Amendment: “Speech restrictions favoring one viewpoint over another are not content based unless it can be shown that the favored viewpoint has been expressed.”

Once again, I can speculate with confidence that the four liberal justices were going to dissent in this case and it would have been a 5-4 ruling striking down MFHCFA. However, Chief Justice Roberts got the liberals onto the majority opinion by offering them a concession that the law was not designed to be discriminatory, but it was content neutral for political reasons (nothing is more political these days then abortion discussions). However, such compromises have serious consequences as Scalia points out in his arguments: free speech rights have been mitigated by this decision, not enhanced as one may think by seeing a 9-0 decision in favor of free speech.

Thursday, July 20, 2017

Even Unanimous Decisions on the Supreme Court are Political (Part II)

Scalia shows proof that from 1789 to 1822 there was no use of the recess appointment clause. From 1822 to 1862 there was minimal exploitation of the clause. In other words, the framers generation applied the recess appointment clause appropriately and did not exploit it despite changing dynamics within the Senate and executive branches. Most of the exploitation of the clause occurs from the FDR administration to the present.

I do not know what happens behind closed doors at the Supreme Court, but I can speculate. This case appears to be a political compromise. The liberals agreed to join the majority opinion if Justice Kennedy joined their concurring view of the majority opinion to redefine the “recess appointment clause”. I believe the liberals on the Court truly believe the recess appointments that Obama made were Constitutional, but they were not going to win (5-4) the battle. Hence, they compromised with swing vote Justice Anthony Kennedy so they could win the war.

Would this level of politics really happen on the Court? Of course! Consider the cases: Unites States v. Windsor and Hollingsworth v. Perry decided in the same session of the Court in 2013 as the NRLB case. Windsor made the Defense of Marriage Act (DOMA) unconstitutional and Hollingsworth was a gay marriage case. Both cases were similar in the fact that it was highly debatable as to whether or not the plaintiffs had standing for the Court to rule on these cases. In Windsor, a lower court ruled DOMA was unconstitutional and the Obama DOJ did not contest the decision. The Obama administration however, purposely withheld Windsor’s refund for higher estate taxes (single persons pay more than married persons) that she was forced to pay when her partner died. Why would the DOJ fail to contest the case but withhold Windsor’s refund? In order for Windsor to have standing in the Supreme Court there would have to be some sort of damages she is trying to reconcile to standing. If she received her refund there would be no reason for the Court to hear to the case. Obama wanted the Court to legislate from the bench and find DOMA unconstitutional and that is exactly what happened. Four Justices however, contended that the Court had no standing because the DOJ was not contesting the estate tax refund. In Hollingsworth, a California conservative group filed an appeal to the Court to overturn a lower court’s finding that Proposition 8 (marriage is between a man and a women) was unconstitutional. Once again, in Hollingsworth, the plaintiffs suffered no damages so the Court ruled they had no standing to hear the case. Scalia and Roberts voted the same in both cases: the plaintiffs had no standing. Alito, Sotomayor, and Kennedy voted the same in both cases: the plaintiffs had standing. Thomas voted in Windsor there was no standing and in Hollingsworth there was standing. Justice Breyer, Kagan, and Ginsberg voted in Windsor for standing and in Hollingsworth for no standing. It is interesting to note the four Justices that switched votes. Do they have different views on the standing doctrine or do they have some other political motive. In my view, the liberal justices wanted to the Court to legislate that DOMA was unconstitutional. However, at the same time, the liberal justices did not want to take up the gay marriage case and henceforth it allowed gay marriage to continue in California. I believe Thomas was convinced to change his vote because he wanted to protect the will of the people over initiative cases. Twenty-Six states allow the people to change their State’s constitution through referendums. Since the Court ruled that people fighting for these referendum initiatives within the states had no standing, it set a precedent that Thomas truly did not believe in: It denies the free will of the people in the political process. Conveniently, the DOMA ruling was cited in Obergefell two years later to rule gay marriage is a fundamental right.

Sotomayor is not immune to playing politics. In Schuette v. Coalition to Defend Affirmative Action in 2014 Sotomayor claims throughout her dissent that “race matters”. Michigan passed a new law to its constitution via a referendum: “The State shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of races, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” Sotomayor found this new law in violation of the “equal protection clause” of the Fourteenth Amendment because “race matters” when determining a person’s qualifications for college. Sotomayor rambles on senselessly about the history of discrimination as well as statistics back in 1960s or earlier. These narratives have no bearing on the case. Sotomayor points out that the University of Michigan saw its black enrollment decrease from 12.5% to 10% since the referendum passed. What this means is that 1 in 40 opportunities before the referendum passed had been taken from a deserving person and given to a less qualified person simply for being black. And there are even more opportunities hijacked from deserving persons by Hispanics. This is discrimination and the precise reason for “equal protection”: when one group of people is treated differently than another group. The Michigan law defines equal protection to perfection.

Monday, July 17, 2017

Even Unanimous Decisions on the Supreme Court are Political (Part I)

The Supreme Court decision for the 2013 case National Labor Relations Board (NLRB) v. Noel Canning was decided by a 9-0 unanimous decision. The Court correctly decided the Obama administration used the “recess appointment clause” incorrectly when appointing three members to the NLRB. So how could a correctly decided case by unanimous decision be controversial? First, the majority was divided between conservative and liberal interpretations of the “recess appointment clause”. Secondly, there was little to no precedent on the “recess appointment clause” giving liberals more latitude to push the living constitutional narrative. Antonin Scalia wrote the conservative majority opinion defending the original text of the constitution. Stephen Breyer, wrote the liberal interpretation of the majority opinion defining the “recess appointment clause” based on the historical use of the clause. Since five justices sided with the Breyer argument over the Scalia argument, Breyers point of view is the law of the land.

The recess clause states: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” There were two fundamental questions before the Court: 1. Does the president have the right to fill a vacancy during any Congressional recess or just during one major recess and 2. Can the president fill any vacancy including those that did not happen during a Congressional recess? At the beginning of American history, Congress did not remain in session very long – about 4 to 6 months - and then went on a long 6 to 8 month recess. Today, Congress in session most of the year and take several (shorter) recesses throughout the course of a year. This change in Congressional work patterns was argument enough for Breyer to want to change the scope of the “recess appointment clause”

Justice Breyer changed the meaning of the “recess appointment clause” in his decision based on “late arising historical practices”. Thus, Breyer not only changed but basically read the “recess appointment clause” out of the constitution. According to Breyer, Congress must be out of session for at least 3 days for it to be considered a recess. The president can make a recess appointment during “any” recess that is over 10 days long. In other words, the President cannot make a recess appointment during “any” recess that is 3 to 9 days in length. Breyer made things even more complicated by leaving his “recess appointment” definition open ended. For instance, there may be instances following an emergency or catastrophe where the president could make a “recess appointment” at any time (during a Congressional recess).

Justice Scalia disagreed adamantly. First, he talked of the responsibility of the Court to adhere to the original text of the constitution so the “separation of powers” between the legislature and executive branches is honored. Under Breyer’s definition the executive branch garners much more power and it can remove the Senate from the confirmation of appointments altogether. This new executive power could certainly, at times, encroach on the liberties of “We the people”. Scalia cites Marbury v. Madison that is the responsibility of Court to “to say what the law is”. Justice Kennedy wrote in Zivotofsky v. Clinton that the Court role is not “lessened” when “two political branches are adjusting their own powers between themselves”. In Enterprise Fund v. Public Company Accounting Oversight the Court said it “does not depend on whether the encroached-upon branch approves the encroachment”. In other words, the history of how the “recess appointment clause” was used does not matter. What matters is determining the law.

Scalia also argues that the words “the recess” suggests that the president can only make appointments during one break separating two sessions – not during multiple recesses as Breyer suggests. Scalia refutes Breyer’s argument that the founders merely forgot to place time frames within the clause. Scalia shows that there are two clauses in the Constitution that places time frame restrictions on both the legislative and executive branches. For instance, the president has 10 working days to act on passed legislation or it becomes law. Scalia further refutes another Breyer argument that would change the meaning of the word “happen” in the recess appointment clause that would enable a president to appoint officers for all vacant offices, including those that were not opened during a recess. This presidential power would permit the executive to infinitely refill positions during every recess and their appointment would never expire and they would never face Senate confirmation. Finally, as to the “open ended” nature of the Breyer version of the clause, Scalia explains a natural disaster happening during a Senate Recess would still require them to return to session to appropriate funds since only Congress can appropriate funds. Therefore, there is no need to keep the clause “open ended”.

Sunday, July 9, 2017

From Peripheral Nerve Disorder to State and National Cycling Champ

I am not going to go into any detail about my disorder (Cramp Fasciculation Syndrome - CFS) or its symptoms because I have written lots of articles on that subject in this blog. And I am not going to go into any detail about the havoc this disorder wreaks on the lives of people who have peripheral nerve disorders (PND) and how difficult it is to exercise, especially intensely (I have documented this in great detail). I will say without CFS I would have never found cycling. I had to evolve and find new sport activities since my disorder made it virtually impossible to do other activities without it being a safety concern or without a great deal of pain. Do not get me wrong, it hurts to cycle, but the pain levels are tolerable even when training at a high level.

My message in this blog is to tell folks with PND to keep fighting and evolving. Life it too short to miss out. This year I won the Colorado Masters Time Trial Championship (Age: 50+, Category: 4 & 5) and the National Senior Games 5K and 10K Time Trial Championships (50-54 Open Division). I finished 13th at the USA Nationals Masters Time Trial Championships (50-54 Open Division) – This is the most competitive national race. I was a mere few seconds from earning a top 10 finish and my time would have been good enough to place 5th in the 55-59 group which is less than two years away for me.

I am not too sure what is next for me. I miss riding a bike just for fun. Do not get me wrong, it is fun to go fast, but that fun is not realized until the race is over and you catch your breath. Training is fun, but it is really painful. I’ll continue to take it one day at a time and try to remain humble with my successes and learn from my failures.

My wife asks me why I put myself through so much pain and travel aggravation to compete. I told her a few short years ago I was being tested for ALS and MS and I thought I was dying. After being diagnosed with CFS it was blessing but my life was changing for the worse. When I found cycling it made me appreciate that much more that I have an activity I can do. I figured it was just a matter of time before the slow progression of my disorder took cycling away from me as well. So I wanted to make the most of what I had because it could go away at any time. I wake up every day and realize how lucky I am because there are lots of people suffering in this world much worse than I am. What I am going through was a wakeup call for me and I am doing my best to answer that call and make the most of it.

I have been told my entire life that I would not amount to much. My mother, when she was mad at me, would tell me how stupid I was since I had issues with reading and writing. I worked hard to prove her wrong. I got rejected at most schools because they said my test scores and grades were not good enough to be an engineer. I worked hard to prove them wrong. At work I was told product and test engineers were inconsequential and did not make a difference like design and system engineers. I became one of few product and test engineers to be named a Distinguished Member of the Technical Staff. Multiple neurologists told me my life would change for the worse and I would not be able to remain active. I have worked hard to prove them wrong. I really do not like it when people tell me I cannot do something and it motivates me to prove them wrong. My wish is everyone with peripheral nerve disorders also prove their neurologists wrong! Do not settle with what they prognosticate for you! I believe most people can overcome a great deal of adversity if they put their minds to it.

Pain is relative and it is impossible for anyone to know what is going on inside another human being. Maybe my pain is not as bad as others, but I know my hands and feet hurt a great deal. My muscles are sore to touch. I know I definitely have pain, but it is impossible to relate my PND experiences with others because we are so unique. Peripheral Nerve Disorders attack each of us differently and remedies that work for one person to relieve pain will not work for another. I receive several emails per week from people suffering and I do not have many answers for them, but if you want someone to talk with feel free to write me. I do my best to try to motivate others. When I wake up I say to myself there is no way I can train today. I never feel like training, but once I get going I feel better for doing it. I encourage those with exercise intolerance to force themselves to walk, they will feel better for doing it. Besides, the pain from training or exercise will mask the pain from CFS which is a much more desirable outcome.

Thursday, July 6, 2017

The Evils of Supreme Court Democracy (Part IV)

In 1954 in Brown v. Board of Education the Court finally overruled Plessy and ordered that racially segregated schools were unconstitutional. This ruling was labeled the “counter-majoritarian difficulty” since the decision defended a minority group. Our Constitution was designed precisely to address the majoritarian difficulty by limiting the power of the federal government as well as putting in place checks and balances. For instance, In Gibbons v. Ogden Chief Justice Marshall specifically outlines some specific state powers that cannot be encroached by the federal government: inspection laws, quarantine laws, health laws, and transportation laws. The Court’s interpretation of the commerce clause in the FDR administration has allowed the federal government to control all economic issues regardless as to whether they are interstate or intrastate (consider the 1941 ruling in Wickard v. Filburn). The Rehnquist Court limited some of the commerce clause power of the federal government by drawing the line between economic and non-economic issues in the cases: United States v. Lopez and United States v. Morrison. These cases limited the federal government’s scope over guns and local crimes.

Once the federal government becomes too big, as Madison rightly points out in Federalist 10, the number of factions will grow. For instance, our country is divided over a plurality of issues that should not be of any federal concerns: abortion, gay marriage, death penalty, sex, and so forth. The federal government is creating winners and losers over social issues when the Supreme Court makes the final decision to legislate from the branch. National level fights over so many controversial issues creates a polarization that leads to gridlock. A one size fits all federal regulatory scheme is detrimental because it limits federalism and hence, individual sovereignty. States with different laws over social and economic issues allows people to move to a state that fits their ideology. When the federal government encroaches on federalism, it denies individual sovereignty. The Federal income tax allows the government to coerce states into participating in programs such as welfare denying more power and sovereignty from the people and states. Federalism is not just a conservative issue. In 2005 the case Gonzales v. Raich, the Court held that a California law allowing people to grow marijuana for medical use to be unconstitutional. Why are citizens with real medical problems prohibited of pursuing a life without pain? Why must the government intrude over a state issue?

There are other techniques the Federal government uses to grow its power by limiting the separation of powers. One such method is the establishment of agencies that have the power to make laws instead of Congress. Consider the EPA’s crippling regulations on businesses as just one example. More agencies also expands the federal government’s spending power. Under this system of rule, the constitution’s checks and balances no longer exist to protect the liberty of individuals but to protect those who want to control liberty of individuals. The Supreme Court has looked the other way to unconstitutional federal agencies saying as long as it is an “intelligible principle”, it would be allowed. Another method to avoid the separation of powers is rolling spending bills of individual departments and agencies into one omnibus spending bill. If the legislature would oppose such a bill, it would create the dilemma of shutting down the government. The omnibus is a method of coercion to limit Congress’s ability to control spending in any matter. Supreme Court judicial restraint and deference provide the executive and legislative branches too much power. For instance, in the 1984 case between Chevron v. Natural Resources Defense Council the Court deferred to the EPA’s interpretation of the law unless their interpretations were unreasonable. Judicial restraint is a concept practiced by Justices where they hesitate to strike down laws unless they are obviously unconstitutional. Using Judicial Restraint the Court has also used unreasonably broad interpretations of the Necessary and Proper Clause, the Spending Clause, and the Commerce Clause to justify unlawful legislation. The Court also uses substantive due process (using the Fourteenth amendment “due process” clause) to wrongly elevate the status of some fundamental rights such as the “liberty of contract” (Lochner), “the right to privacy” (Griswold), “the right to an abortion” (Roe), and “the right to gay marriage” (Obergefell). Instead, the Court should rule on the rational or arbitrary nature of the law to prove if it is proper or just. What the Court has viewed as rational and non-discriminatory in the past has been found to be irrational and or discriminatory later on: Carolene Products, Lee Optical, Plessy, Cruikshank, Bradwell, and so on. This is what happens when the court uses majority rule. Still, today, most justices adhere to the philosophy of upholding any legislation that may have any hypothetical reason for its passing as Justice Douglas said “the law need not be in every respect logically consistent with its aims to be constitution”. Hence, the need for a law to be “rational” was removed from the equation. Douglas also stated that “The legislature may select one phase of one field and apply the remedy there, neglecting the others.” Therefore, the need for the law to be non-discriminatory is also removed from the equation. In other words, a judge merely needs to conjure up some imaginary reason for a law for it to be upheld. Today, the Court usually conjures up some “fundamental right” or selectively identifies a “suspect class” of people deserving special protection. Of course the Court only recognizes fundamental rights when they are popular (majority rule) and suspect classes are only recognized when they are politically influential. The Court also invented what is known as the Dormant Commerce Clause (Nebbia v. New York) where the Court can encroach on State police power even over non-federal issues. The President can move unilaterally with executive actions to pass things that should go through Congress such as comprehensive immigration reform. Under such a system, the federal government has become “legislator, judge, and executioner of its own prerogative powers.” As Madison rightly explains in Federalist 10, such a situation of government would be “corrupt”.

Sunday, July 2, 2017

The Evils of Supreme Court Democracy (Part III)

The Wilson era may have been the most racist time after the Civil War in American History. But all was not bad, in Bailey v. Alabama the Court held an Alabama law making it a crime subject to imprisonment for a person to quit a job after signing a labor contract and accepting a payment in advance as unconstitutional (servitude and hard labor was allowed in prisons). Of course, Holmes once again dissented (known as the Great Dissenter and of course as one of the great progressive liberal minds). In 1917 the case between Buchanan v. Warley the Court held a racially exclusionary zoning law in Kentucky unconstitutional because it violated the due process clause of the Fourteenth Amendment. In the ruling, although the Court rejected the police power rationale in the Plessy ruling, it did not invalidate the law because they still considered “equal but separate” non-discriminatory. Holmes was going to dissent, but for some unexplained reason he sided with the unanimous majority. In the 1908 case Muller v. Oregon the court held that an Oregon law limiting women to 10 hour work days was constitutional. Justice Louis Brandies concurred with the ruling summarizing the “physical differences between men and women” along with “scientific proof” submitted by dozens of male authorities on the issue. Brandies arguments were similar to those issued by Justice Bradley’s sexist and misogynist arguments in Bradwell. Upholding Muller despite its discriminatory nature made it more difficult for women to find work in Oregon. In 1919, the Court upheld the Espionage Act of 1917 in Schenck v. United States. Schenck wrote unpatriotic pamphlets about WWI and was convicted and sentenced to jail. The Court (Holmes) set the “clear and present danger” exception to the First Amendment and weakening our individual liberty for free speech. In 1927 in Buck v. Bell the Court upheld a Virginia law allowing intellectually challenged persons to be sterilized. Holmes this time wrote the majority opinion referring to the “living constitution” and modern science to declare that “three generation of imbeciles is enough” when referring to the Buck family. Carrie Buck was “lawfully” sterilized. Remember, a “living constitution” is one that is ignored or is dead. In the 1944 case Korematsu v. United States, the Court held that it was legal to intern Japanese-Americans following Pearl Harbor without due process of the law. The Bailey and Buchanan decisions were outlier rulings on Civil Rights during this period while Muller, Buck, Schenck, and Korematsu were more common decisions during this era since “legislative majorities guarantees that challenges by out groups will fail.” In other words, minorities like the Japanese race, blacks, the intellectually challenged, women, and communists are destined to lose to the majority factions of early twentieth century politics.

The due process clause of the Fourteenth Amendment would continue to be weakened by the FDR Court. In the 1934 case Nebbia v. New York, the Court held that New York State could regulate the retail price of milk protecting the big dairy companies over small mom and pop shops (obviously an arbitrary decision opposite to the Court’s reasoning in Lochner). The 1938 case involving the United States v. Carolene Products Company the Court began to set standards for applying the commerce clause (the Famous Footnote 4 case). While the Court used very low standards for economic issues, the Court applied higher standards for other laws affecting other areas of “commerce”. One standard was whether or not the law attempted to distort the political process and another standard was whether or not the law discriminates against a smaller minority groups (i.e. trying to minimize the power of majority groups or factions over smaller groups). Carolene Products lost this case because their healthier products were falsely deemed unhealthier than other milk products. Hence, the dairy lobby won this case using false information and denied Carolene products the same right to interstate commerce they enjoy (once again arbitrary). The Court ruled if it had a “rational” reason it could deprive a person or company of life, liberty, or property. The Supreme Court was making up rules (and using false data) to protect earlier New Deal decisions using substantive due process and the commerce clause. After all, siding with Carolene Products would set possible precedent to overrule FDR’s economic agenda. Carolene Products would be vindicated decades later. In a similar case decided in the Warren Court era in 1955, Williamson v. Lee Optical of Oklahoma the Court overturned a well thought out lower case ruling to uphold a law that denied Lee Optical the right to do what Lens Crafters performs today (once again an arbitrary decision). The Court said it did not have to contemplate all reasons for the law when making a decision, it merely had to decide if it was reasonable. In Reynolds v. Simms (1964) the Court said that state legislatures have to enact democratic principles of majority rule because it found republican principles held in the constitution to be unconstitutional. This was the famous “One person, one vote” case that said state legislature representation had to be based on population outlawing republican principles in the Constitution such as the Senate from being adopted at the state level. This law provided urban areas an unfair (discriminatory) advantage over rural areas.

Thursday, June 29, 2017

The Evils of Supreme Court Democracy (Part II)

There were obvious flaws in the Constitution regardless as to whether or not the United States was a Republic. First, it allowed slavery and second, it held women in low social standing. The 1842 case Prigg v. Pennsylvania found that the Fugitive Slave Act of 1793 preempted Pennsylvania legislation that prohibited blacks from being removed from the state and put into slavery. The Court cited the necessary and proper clause in its decision which allowed the federal government to encroach on its enumerated powers. If Congress could pass a slave law and the Supreme Court could uphold the law as being constitutional, then the U.S. was a democracy following the majority opinion of the national sentiment at the time: to oppress blacks. If the U.S. was a Republic the Supreme Court would have nullified the Fugitive Slave Act for failing to provide life, liberty, and happiness to blacks. The 1957 famous case Dred Scott v. Sanford found slaves or freed blacks were not rightful citizens and therefore, blacks had no standing in the Supreme Court. Chief Justice Taney ruled that slaves were “property” and slave owners were allowed due process of the law when deprived of their property. After the Civil War, the Constitution was amended with the Thirteenth Amendment (emancipation of all slaves), Fourteenth Amendment (holding states to the Bill of Rights and privileges and immunities of individual) and Fifteenth Amendment (allowing black men the right to vote). Privileges and Immunities are defined in the 1823 case between Corfield and Coryell by Justice Bushrod Washington “the enjoyment of life, and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety ….”. This language was also found in the Massachusetts constitution and was used by the Massachusetts Supreme Court to outlaw slavery. However, the Fifteenth amendment’s reference to “men” would deprive women of many rights and it took the Twentieth Amendment to overcome this error and provide women the right to vote. For instance, the 1876 case Bradwell v. Illinois, by an 8-1 vote, the Court denied Myra Bradwell the right to practice law even though she had passed the bar examine. The rationale was simply because Bradwell was a woman.

During the 1880s there were many civil rights cases. In these cases a majority of the Court ruled that the Thirteenth Amendment only applied to slavery and not lesser acts of discrimination. The Court also decided that the Fourteenth Amendment only applied to discrimination conducted by states and not actions taken by individuals. In the 1873 Slaughter House Cases, the Court redacted the vitally important “privileges and immunities” clause from the Fourteenth Amendment. By doing so, the Court denied New Orleans butchers the right to practice their trade without reasonable regulations. The Court majority decided that the “rational” narrative for their decision was to protect the health and safety of the people in New Orleans. That may be a legitimate narrative, but there was also a corruption narrative for creating the butcher’s monopoly in New Orleans that was obviously ignored by the majority. In fact, there were also two racial narratives: one for the statute, and one against it. And the “southern” racial point of view won by gutting the Fourteenth Amendment to prevent “privileges and immunities” from ever being applied to black discrimination cases in the future (the Court would eventually rely on the due process clause of the Fourteenth Amendment to end racial and gender discrimination). With so many narratives, it is best to stick to the text of the constitution when deciding cases of such importance (it was the first Fourteenth Amendment case). If the case was decided on the constitutions text, the dissenter’s argument would have won the day: a person has the natural right to pursue a lawful occupation subject to reasonable regulation. A reasonable law must be both rationale while not being arbitrary. A law must pass both tests of reasonableness (rationale and non-arbitrary) to be constitutional. While the majority found one of several possible rationale narratives to meet their standards, they did not address the arbitrariness of the law which restricts some butchers far more than others. Hence, regardless of the rationale in this case, the law was arbitrary because it discriminated against a large majority of the butchers and therefore, the law was an improper use of police power. In United States v. Cruikshank the Supreme Court invalidated the Civil Rights Act of 1875. Cruikshank’s murder conviction for lynching two blacks was overturned because the Fourteenth Amendment only applied to states, not individual crimes and discrimination. So it should come as no surprise in the 1896 case Plessy v. Ferguson the Court ruled that segregation was acceptable so long as both Whites and Blacks have equal access - it is not discriminatory or arbitrary. The majority theorized the decision to segregate was rationale for the purpose of protecting the peace. These types of rulings happen for one basic reason: the Court is not practicing the law, but are instead influenced by the democratic majority of social sentiments at the time. One democratic lawyer proposed: “judges can only disregard a statute when those who have the right to make laws have not merely made a mistake, but have made a very clear one – so clear that it is not open to rational question.” Hence, the rationale and arbitrary test standards are so low or non-existent when ruling on the constitutionality of laws.

Oliver Wendell Holmes in his dissent in Lochner v. New York in 1905 wrote “I think the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominate opinion.” Holmes is preaching majority rule and not the law. In Lochner, the Court rightly struck down a provision of a New York law limiting the hours for bakery employees to 60 hours a week. The Court did however make an error by elevating the “liberty of contract” to a fundamental right. “Majority rule” was the same attitude that President Teddy Roosevelt had when he said “the majority have the right to rule in the name of the will of the people”. Teddy Roosevelt made the Lochner decision a part of his 1912 progressive platform for president. It was Woodrow Wilson that gave us the concept of a “living constitution”. In other words, the constitution’s meaning changes over time to meet those ideas and concepts proposed by the majority. Wilson also gave us the Sixteenth Amendment in 1913: the Income Tax (previously ruled unconstitutional by the Supreme Court) giving the Federal Government coercive power over the states and Seventeenth Amendment also in 1913: the election of Senators via a popular vote taking more power away from state legislatures to stop federal government encroachment. Wilson was infamously known for being a bigot who favored segregation as the Court decided in the Plessy decision. Worse yet, as President, Wilson implemented segregation policies for all federal offices.