Thursday, October 19, 2017
I am not a lawyer, but I have independently studied Supreme Court Case Law books written by Georgetown professor Randy Barnett. I am only a novice, but in my opinion the Court has been out of line with many of its decisions. How can America regain its Freedom and Liberty and restore our Confidence in the Supreme Court? This is difficult task. Supreme Court nominee Neil Gorsuch said “If you like all your decisions, then you are not being a good judge.” This is so true, it is impossible to find solutions to all problems in the Constitution unless a judge decides to legislate from the bench. Here are few steps to put the Supreme Court back on track: 1. Overrule the 1873 Slaughter House cases. This is essential to restore the “privileges and immunities” clause of the Fourteenth Amendment. The Court has improperly used the “due process” and “equal protection” clauses to compensate for the loss of the “privileges and immunities” clause. Clarence Thomas attempted to bring back the “privileges and immunities” clause in his concurring majority decision in McDonald v. Chicago in 2010. The Supreme Court has even used the Commerce Clause to replace the missing “privileges and immunities” clause (see Atlanta Hotel v. United States or Katzenberg v. McClung). 2. Continue to limit the use of the Commerce Clause for economic issues only. The Commerce Clause has been expanded, especially under the FDR New Deal. The Commerce Clause was used to regulate not just interstate trade, but anything economic including intrastate activities (see Wickard v. Filburn). However, recently the Court has made a stand to limit the Commerce Clause to just economic issues (See Bond v. United States, United States v. Lopez, and United States v. Morrison). 3. Stop legitimizing legislation based on “emergencies”. The Court has granted the federal government expansive powers during times of war or crisis (the Depression). Some of the worst Supreme Court Decisions have come because of “emergencies”: Korematsu v. United States (WWII), Schneck v. United States (WWI), the Legal Tender cases (Civil War), and Wickard v. Filburn (the Depression). The Court should remain true to the Constitution as it did during the Korean War when deciding Youngstown Sheet and Tube v. Sawyer (Truman tried to seize steel companies). 4. Be wary of deciding cases based on data, popular consensus, or facts: stick with the law. Many times the Court has decided cases based on popular consensus (Plessy v. Ferguson, United States v. Cruikshank, and Korematsu v. United States), and misguided data and facts (Bradwell v. Illinois, Buck v. Bell, Mueller v. Oregon, O’Gorman v. Hartford Insurance, Roe v. Wade, and even cases like Carolene Products) 5. Stop deciding Dormant Commerce Clause cases. See my blog “Why the Dormant Commerce Clause is Bogus”. 6. Social Justice cannot be a determinate of any kind to decide any case. Consider the 1996 Romer v. Evans where the Court struck down a Colorado Constitutional Amendment that denied “preferential” treatment to homosexuals. In other words, homosexuals cannot obtain a job, for instance, because of a quota system. Instead, the Court found the provision to discriminate against homosexuals. However, the Court’s decision is hypocritical because it discriminates against other groups that are not gay. In his dissent Scalia points out that the majority decision in Romer is “heavy reliance upon principles of righteousness rather than judicial holding.” Roe v. Wade, Obergefell v. Hodges, and Lawrence v. Texas are good examples of social justice decisions by the Court.
Sunday, October 15, 2017
Can Roe v. Wade be overturned? Of course. But to do so there must be some “erosion” to the principles in which Roe was decided to make it possible. Actually, Casey v. Planned Parenthood decided in 1992 may be the actual precedent that needs to be overturned. Casey upheld Roe, but revised the initial trimester conditions held in Roe. Below are the Supreme Court precedent that can be considered to overturn Roe. First, the Court banned Partial Birth Abortion (Gonzales v. Carhart – 2007). This did not end abortion, but it pointed out the horrors and dangers of such procedures to the mother and how it “kills” a “viable” baby by “crushing” its skull and to vacuum out “brain matter” so the baby’s head can easily pass through the cervix. This does not paint a very good picture of abortion, nor does it paint a very picture of those who support these types of procedures. Partial birth abortion methods did nothing but bring more “substantial and continuing criticism” to the business of abortion. Carhart is significant because the Court is on record against some form of abortion – that is a start in creating useful precedent. Second, the precedent that may be the most revealing is Washington v. Glucksberg in 1997 (also to a lesser degree Reno v. Flores in 1993). In this case, the Court refused to elevate “the right to die” encompassed by “assisted suicide” to a fundamental right because suicide was “not deep rooted in American history or tradition”. Nor is “the right to die” an “implicit in the concept of ordered liberty” (Palko, 1937) and “neither liberty nor justice would exist if they were sacrificed” (Glucksberg). This decision, without question, eroded the foundation of Roe and Casey because abortion is certainly not deep rooted in American history or tradition. This standard was never applied to either Roe or Casey when they were decided. Third, the liberal progressive judges in their righteousness of obtaining social justice may have given the conservative sect of the Court ammunition to fight Roe and Casey. In Lawrence v. Texas decided in 2003, the Court overturned the 1986 Court decision Bowers v. Hardwick. Both cases dealt with statutes against homosexual sex (sodomy). In Bowers, the Court said that homosexual sodomy was not a fundamental right and upheld the Georgia law. In his dissent to Lawrence, Justice Scalia astutely summarizes the majority opinion criteria to overturn a case. A case can be overturned if it meets the following “emerging awareness” criteria: “1.Its foundations have been ‘eroded’ by subsequent decisions; 2. it has been subject to ‘substantial and continuing’ criticism; and 3. it has not induced ‘individual or societal reliance’ that counsels against overturning.” Scalia points out these same “emerging awareness” principles can be used to overturn Roe. 1. Glucksberg and even Carhart has “eroded” Roe’s foundation; 2. No question that abortion faces “substantial and continuing criticism” (for instance, outrage over partial birth abortion); and 3. Roe’s fundamental “right to abortion” has not been precedent cited in any decision other than abortion cases (other aspects of the decision may have been cited, but not the fundamental right to abortion that the core aspect of decision is built upon). Bowers was cited in cases dealing with sexual morality cases such as public indecency. By overturning Bowers sexual moral behavior can now be used to legalize (prostitution, incest, obscenity, polygamy, etc.). Overturning Bowers is a “massive disruption of the current social order” but overturning Roe “would simply have restored the regime that existed for centuries before 1973.” Can Roe and Casey be overturned? Yes, and the liberal Court would get what it deserves. The liberal sect of the Court is applying social justice and not the law. Liberal rulings enable the Court to apply any imaginary principle or invent any fundamental right it wants to get the decision they want. In Lawrence the court does not elevate homosexual sex as a fundamental right, but says homosexual sex is “an exercise of their liberty”. That is very broad and ambiguous. Liberty can be restricted and is restricted all the time. Private sexual liberty is also restricted. For instance, polygamy, incest, or prostitution. This is why the Lawrence decision makes no sense, it makes it sound as if liberty cannot be restricted by the government for any reason. This is not the law, but a fabricated fascination the Left calls the law. Wouldn’t it be ironic if the Court could use the Left’s fabricated fantasy they call the law in Lawrence v. Texas against them to overturn Roe and Casey? Lawrence v. Texas could have been invalidated based on the “equal protection” clause or even the “due process” clause without elevating a fundamental right. But this is not sufficient to Leftist judges who have an agenda and answer to constituents and not the Constitution.
Tuesday, October 10, 2017
There is no such thing as a Founding Father for African-Americans, but if there was one it would be Frederick Douglass. Although Douglass was not alive during the founding period, he was the key leader during the initial civil rights period to end slavery. Douglass was born a slave in Maryland in 1818. After several failed attempts, Douglass escaped to the North and settled in Massachusetts. In 1839, Douglass became a licensed preacher and became active in abolitionist groups. Douglass was a gifted writer and orator and he symbolized the antithesis of Southern and even Northern views of a Black person. Most could not believe such a gifted person could have once been a slave. In other words, Douglass debunked any bigoted ideas that Blacks did not have the intelligence to be functional members of American society. Douglass was remarkable for many reasons. He had many of the traits of more modern Civil Rights leaders such as Martin Luther King. Douglass, like King, was not only smart and protested for equal rights for all (not just blacks, but for women), but showed little animosity towards the system that oppressed him. Douglass, like King, was very active in the political process supporting Ulysses S. Grant for President and was even the Vice Presidential candidate on a small Party ticket in 1872. After the Supreme Court held that Blacks had no Constitutional rights in the landmark 1857 case Dred Scott v. Sanford, Douglass was at his best. In one of his most famous speeches Douglass declared that “my hopes were never brighter than now.” He continued “The Supreme Court of the United States is not the only power in this world.” Douglass contended “I ask, then, any man to read the Constitution and tell me where if he can, in what particular instrument affords the slightest sanction to slavery?” He added “Where will he find a guarantee for slavery? Will he find it in the declaration that no person shall be deprived of life, liberty, or property without due process of the law? Will he find it in the declaration that the Constitution was established to secure the blessings of liberty? Will he find it in the right of the people to secure in their persons and papers, and houses, and effects? Will he find the clause prohibiting the enactment by any State of a bill of attainder?” Douglass realized that all these “strike at the root of slavery, and any one of them, but faithfully carried out, would put an end to slavery in every State in the American Union.” Douglass understood the Dred Scott decision showed that the “Constitution does not mean what it says, and says what it does not mean.” Douglass had full faith in the Constitution: “I am here to vindicate the law, not the administration of the law. It is the written Constitution, not the unwritten Constitution, that is now before us.” He further notes about the Constitution: “It makes, as I have said before, no discrimination in favor of or against, any class of people, but is fitted to protect and preserve the rights of all, without reference to color, size, or any physical peculiarities.” He summarizes by saying “let me say, all I ask of the American people is, that they live up to the Constitution, adopt its principles, imbibe its spirit: enforce its provisions.” Douglass would make a similar argument in an 1860 speech in Glasgow Scotland. Douglass was right, the “Constitution is for the ages” and would prevail over time. Of course, the Thirteenth, Fourteenth, and Fifteenth Amendments were needed to accomplish his vision, but the Constitution prevailed just as a confident Douglass predicted. Douglass would not support present day diversity, affirmative action, or welfare programs. Douglass was about having equal rights for all Americans. His 1865 speech “What the Black Man Wants” is once again amazing. Douglass says in part “What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice.” He would continue “And if the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone! Your interference is doing him positive injury.” Douglass was not only ahead of his time, he is more advanced in his thoughts than modern liberal or progressive policies seeking social justice. Has social justice helped African-Americans? Some, but over the course of time, social justice is doing more to harm the African-American race than to help them. Douglass could have been bitter about his situation. However, Douglass was less bitter about what happened to him than most present day minorities who repeatedly inject race as an excuse for their failures. Douglass had faith in the Constitution, but unfortunately Justices are destroying his vision and faith: For instance, see Grutter v. Bollinger (2003) and University of California v. Bakke for diversity decisions or Roe v. Wade, Lawrence v. Texas, and Obergefell v. Hodges for social justice decision.
Saturday, October 7, 2017
In 1823, Circuit Judge Bushrod Washington wrote the opinion for Corfield v. Coryell. The Court upheld a New Jersey law which prohibited non-residents from gathering oysters and clams from State waters. Washington refused the argument of applying Article IV, section 2 of the Constitution: “citizens of the several states are allowed to participate in the all the rights which belong exclusively to the citizens of any other particular state.” Washington explained that Article IV section 2 of the Constitution “did not guarantee equal access to all public benefits a State may choose to make available to its citizens.” Instead, Washington explained that the section in question of the Constitution only “applied to those rights which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments.” Below is how Washington defined our rights, privileges, and immunities in the Coryell decision: “The inquiry is, what are the privileges and immunities of citizens in the several states? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; 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; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole.” “The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state; may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental: to which may be added, the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised. These, and many others which might be mentioned, are, strictly speaking, privileges and immunities, and the enjoyment of them by the citizens of each state, in every other state, was manifestly calculated (to use the expressions of the preamble of the corresponding provision in the old articles of confederation) "the better to secure and perpetuate mutual friendship and intercourse among the people of the different states of the Union.” This opinion is important because it was key in developing the language for the Fourteenth Amendment over 40 years later. The Coryell decision coupled with the 1866 Civil Rights Act defines our rights, privileges, and immunities not mentioned in the Bill of Rights. The 1866 Civil Rights Act says “to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefits of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.” Unfortunately, the Slaughter House cases in 1873 wrote the privilege and immunities clause out of the Fourteenth Amendment. In 1875, in United States v. Cruikshank the Court held that the Civil Rights law of 1866 to be unconstitutional because Congress could only control state discrimination, not individual discrimination. Cruikshank further held that the Bill of Rights did not apply to the states. Cruikshank was upheld in the 1883 Civil Rights cases. These cases also limited the scope of the Thirteenth Amendment to apply only to abolishing state sanctioned slavery rather than using it to deny discriminatory infractions as well. These decisions were precedent for the horrible 1896 decision Plessy v. Ferguson which established the “separate but equal” doctrine (Jim Crow laws). Why are these cases important? Because they are still valid precedent that has never been overturned (Plessy was overturned by Brown v. School Board). The consequences of the Civil Rights cases, Cruikshank, and the Slaughter House cases has led the Court to apply the Constitution in ways it was never intended. The Commerce Clause has been used to uphold the 1964 Civil Rights Act. The Fourteenth Amendment’s “due process” and “equal protection” clauses have been expanded to cover things that should fall under the “privileges and immunities” clause. For example, the “privileges and immunities” clause was to be used to apply the Bill of Rights to the states, however later Supreme Courts would use the “due process” clause and the “equal protection” clause to accomplish this task. The due process clause was used to elevate new fundamental rights such as gay marriage and abortion. This makes no sense. Due Process merely applies to whether or not someone had a fair treatment throughout the judicial process. Due process does not apply to our fundamental privileges and immunities outlined by Washington in Coryell and by the 1866 Civil Rights Act. In the 2010 case McDonald v. Chicago in his majority concurrence, Justice Thomas gives a very revealing argument to overrule Cruikshank and the Slaughter House Cases and finally use the privileges and immunities clause for its intended purpose. In this case, the Court held that the second amendment applied to the states via the due process clause. Thomas concurred, but properly wanted to apply the privilege and immunities clause instead of the due process clause. Washington’s decision in Corfield v. Coryell is important even though the privileges and immunities he outlines are never applied properly, but instead our rights outlined in that case are still applied via the due process and equal protection clauses. Note: rights and privileges and immunities mean the same thing and are used interchangeably on purpose to illustrate that fact.
Tuesday, October 3, 2017
In 1954, the Supreme Court unanimously decided that the “separate but equal” doctrine was unconstitutional. In 1896, in Plessy v. Ferguson the Court created the separate but equal doctrine. That decision was law for over 50 years and opened the door to discriminatory Jim Crow laws. In Brown v. School Board the Court correctly overturned this practice by deciding “separate but equal” did not apply to education. However, the Court used equal protection clause of the Fourteenth Amendment. This was problematic for several reasons. First, in Bolling v. Sharpe, the Court faced a dilemma. Bolling was decided at the same time as Brown. The cases were identical (did separate but equal apply to schools) with one exception: the Bolling case was over federal jurisdiction (District of Columbia) while Brown applied to States. Unfortunately, an “equal protection” clause does not apply to the federal government in the Constitution. The Court bridged this dilemma by declaring “separate but equal” was unconstitutional using the “due process” clause of the Fifth Amendment. The result of Bolling is apparent, as Justice Stevens points out in Adarand Construction v. Pena the “Fifth Amendment encompasses a general guarantee of equal protection as broad as contained within the Fourteenth Amendment.” Secondly, the Court says that the “circumstances surrounding the adoption of the Fourteenth Amendment” is “at best inconclusive”. This is not true, and does a huge disservice to the Amendment. This means that the Court decided Brown without knowing the true meaning behind the Fourteenth Amendment and therefore, gave their own interpretation of the Amendment. As Michael McConnell said “Brown is now a mighty weapon against the proposition that the Constitution should be interpreted as it was understood by the people who ratified it.” This is how the Fourteenth Amendment became a tool for “social justice” or “social rights” instead of an equal protection of the fundamental rights of all citizens. McConnell proves without a reasonable doubt that the framers of Fourteenth Amendment intended it to end segregation. The Civil Rights Act of 1875 was passed to enforce the Fourteenth Amendment and it denies segregation at inns, theatres, restaurants, and public accommodations. Public schools falls in this same category of public accommodations. In fact, a better argument can be made that “separate but equal” does not apply to schools more so than inns or theatres because schools are maintained by taxes by all Americans. In other words, an “originalism” interpretation to decide Brown is easy to make but the Court fails to draw the same conclusions. Thirdly, the Court further suggests a “modern” interpretation of the Fourteenth Amendment. Chief Justice Warren says “Whatever may have been the extent of the psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority.” This wrongly asserts that the interpretation of the constitution can change over time. Fourthly, the Court relies on testimony and “data” showing that segregation has a “detrimental effect” on colored children because it makes them feel “inferior”. Using this information in deciding the case makes it about “social justice” and not the law which supports the decision. The biggest injustice to the Fourteenth Amendment happened in the Slaughter House Cases in 1873 when the “privileges and immunities” clause was basically written out of the Amendment. The proper way to decide Brown would have been to use the “privileges and immunities” clause. All people have the same rights or “privileges and immunities”. This means we all have the same fundamental right to be free from government restraint. All Americans can therefore choose what school to attend, what restaurant to eat at, and what movie to see without government intrusion. Although there is no “privileges and immunities” clause applied to the federal government, the federal government cannot abridge fundamental rights of individuals to be free from government restraint. This is the entire purpose of the Constitution. Scholars argue if Brown was decided by “originalism” methods then “social justice” or “social rights” cases such as Loving v. Virginia would not have been decided correctly. In Loving, the Court applied the equal protection clause to void a Virginia law making interracial marriage illegal. This is also not true. The privileges and immunities clause could be used or even the due process clause. To be a valid law using the due process clause there has to be a rational reason for the law and it cannot be arbitrary. The Virginia statute fails on both accounts – it has no rational basis and it is obviously discriminatory. Once again the Warren Court decides the case correctly, but they use the wrong rationale. This is extremely harmful precedent because it allowed the Court to decide future “social rights” cases incorrectly because “social rights” are not encompassed in the Constitution. Social rights are not fundamental rights. This does not mean that laws restricting social rights will be found constitutional as explained above in Loving. However, “social justice” cases such as abortion and same sex marriage have no justification under the Constitutional.
Saturday, September 30, 2017
Why is the Supreme Court deciding state laws that may burden commerce? The Dormant or Negative Commerce Clause covers cases regarding state laws where Congress has failed to Act. The obvious answer to this question is that the Supreme Court does not want States to pass laws that are discriminatory or provide some type of protectionism. If the Court is successful in removing protectionism among the States then the Court may help eliminate barriers in Commerce that would provide a national market that is equal for all States. However, nothing works like it is intended. There are many reasons why the Dormant Commerce Clause has no place in our judicial system. First, the Court is not suited to make decisions over economic policy. In modern times, Congress is much better equipped to make decisions over state laws (more infrastructure including the massive regulatory agencies contained within the executive branch). Secondly, even though the Court has decided many Dormant Commerce Clause cases, this does not mean that their judgment is the final word on the subject. Congress has the final word on the Commerce Clause and they can therefore pass a law that overrules what the Supreme Court decided. For instance, in the United States v. South-Eastern Writers Association (1944) case, the Court overruled Paul v. Virginia (1869) and held that insurance could be regulated by the commerce clause. A year later, in 1945, Congress responded by passing the McCarran-Ferguson Act which overruled the Supreme Court decision. In Marbury v. Madison (1803), Chief Justice Marshall said it was the duty of the Court to say what the law is. However, the Court does not necessarily know what the law should be in cases involving the dormant commerce clause. Hence, the Court is overstepping its bounds and legislating from the bench. Third, it removes federalism from our system of government and provides more power to the federal government. States should be allowed to experiment with legislation and Congress should adopt those state laws which may work on a national level. In Cooley v. Board of Wardens in 1851 Justice Curtis says “It should be left to the legislation of the states; that is local and not national”. Fourth, the Court consistently sides with federal laws expanding the powers of the commerce clause. The Court can apply any law that they deem ‘may’ have a ‘substantial impact’ on commerce. The laws do not even have to be necessary and proper – laws may just be convenient. The Court has consistently granted constitutionality to federal laws that may protect the safety of American citizens under the ‘general welfare’ clause. For instance, federal laws such as food and drug safety laws have been enforced using the commerce clause. But the Court acts in the complete opposite manner over state laws interpreted by the dormant commerce clause. For instance, in Philadelphia v. New Jersey the Court held a New Jersey law that prohibited solid waste from outside states to be deposited in New Jersey landfills was unconstitutional because it discriminated against other states. In other words, New Jersey was no longer allowed to protect its citizens from an unnecessary exposure to toxins because the law discriminated. Why isn’t garbage a local problem? Why is solid waste even considered commerce? In Kassel v. Consolidated Freightways the Court found an Iowa law to limit the length of trucks on its highways to 55 feet unconstitutional even if it meant having safer roads. The Court made its ruling despite many other states having similar laws. The Court has consistently held that state safety concerns are not reason enough to even slightly burden commerce. However, federal laws can restrict commerce for safety reasons. This judicial review process is contradictory at best. In United Haulers Association v. Oneida-Herkmer Solid Waste Justices Scalia and Thomas had interesting concurring arguments. Scalia says that there is only one way to interpret the commerce clause – it is “an authorization for Congress to regulated commerce”, the Court has no business regulating commerce. Justice Thomas says the Negative Commerce Clause has “proved unworkable in practice”. Thomas continues to say “To the extent that Congress does not exercise its authority to make that choice, the Constitution does not limit States’ power to regulate commerce. In the face of congressional silence, the States are free to set the balance between protectionism and the free market. Instead of accepting this constitutional reality, the Court’s negative Commerce Clause jurisprudence gives nine Justices of this Court the power to decide the appropriate balance.” Thomas explains that reasons that may exist today to find legislation constitutional are “reasons that later majorities of this Court may find to be entirely illegitimate.” Thomas uses the example of the 1905 Lochner decision. Just three years after Lochner was decided the Court upheld Muller v. Oregon which was in stark contrast to the Lochner holding that the “right of contract” prevailed over wage laws. Fifth, the Court applies too many odd rules to Dormant Commerce Clause Cases such as the “market participant” rule. In other words, a State government can make discriminatory laws if the government is an active participant in the market instead of being seen as purely a regulator of the market (Hughes v. Alexandria Scrap, Reeves v. Stake, and White v. Massachusetts). Rules like these seem odd especially considering they do not apply to the Federal government.
Tuesday, September 26, 2017
California attorney general, Xavier Bercerra, has filed suit against the Trump administration for his plans to build a border wall along the California and Mexican border. The suit claims several violations including environmental concerns, a violation of separation of powers between both the federal government and states (Tenth Amendment violation) that will hurt the State’s tourism as well as between Congress and the Executive. If this goes to the Supreme Court this will be a very tough sell for California for a variety reasons that I will try to outline. First, it is probable that the Court may decide that it lacks jurisdiction over the case because it is a political question to be decided by Congress and the President. The crux of border wall argument may come down to the Court’s interpretation of Article 4, Section 4 (Protection Clause) of the Constitution which reads, “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.” It is important to note that Article 4 is not a Congressional enumerated power outlined in Article 1, Section 8. This is important because Article 4 is not solely a Legislative duty, but a joint duty between Congress and the Executive. I would argue further if Congress fails to act against a potential threat (not just when they are adjourned on recess), the President has the right do so. Thus, the Separation of Powers complaint that immigration and protecting the country against terrorism or the dangers of drug cartels is a Congressional function and Trump is violating the Separation of Powers is nonsense. The Republican Form of Government clause of Article 4, Section 4 has been ruled a political questions issue in Luther v. Borden (1849). In this case the Court held establishing a Republican form of government among the states was a political question to be decided between Congress and the President and the Court had no Jurisdiction. Hence, many would also argue the Protection Clause of Article 4, Section 4 is also a political question. However, it may not be that simple. In Baker v. Carr (1962), the Court ruled that State Houses and Senates had to be apportioned based on population to have a Republican form of government, but the Court uses the equal protection clause as a basis for their decision. The equal protection clause does not apply to the border wall case (since the wall is to cover all states which border with Mexico). But Baker v. Carr is troublesome for Trump because the Court did rule on a political questions case (the Court’s actions are not always seen as consistent). Secondly, the case may not be ripe for the Court to have Jurisdiction. It is impossible to understand the implications the Wall will have on either tourism or the environment before it is built, so the case may not be ripe until an injury or damages have been suffered. Even if we evaluate a Congressional enumerated power interpretation of the Constitution, California still has no case. Article 1, Section 8 of the Constitution outlines enumerated Congressional powers. Congress actually has no authority over immigration, but only over naturalization. Therefore, California may be correct to say that the Federal Government has overstepped its authority and violated state’s rights by acting on immigration. But the Federal Government has been acting on immigration for years and the Court has upheld this behavior. In Arizona v. United States (2012), the Court held that many provisions of the Arizona immigration law were preempted by federal law. Our history is filled with federal laws over immigration including controversial ones which targeted certain countries to limit their immigration numbers (China and South and Eastern Europe). In other words, federal law on immigration is the supreme law of the land and states cannot violate these laws even when they are controversial (remember, sanctuary cities and states also violate federal immigration laws). In many regards, it makes sense for immigration to be controlled by the federal government since having 50 different state immigration laws would cause a national mess. For instance, it makes little sense for each state to enforce different quotas for immigration. The federal government is well within its powers to build a border wall to control “naturalization” of citizens (those children born to illegal aliens), prevent drug trafficking, prevent terrorism, and even prevent illegal immigration which is costly to citizens and can affect the employment of citizens. The federal government may do what is necessary and proper to carry out the tasks outlined above even if the means chosen to achieve the ends may be harmful to the states. In McCulloch v. Maryland, the Court said a National Bank was Constitutional even if the means to collect taxes was not the most appropriate to accomplish the ends. In fact, many people have held that the National Bank, at times in American history, was harmful to the American Economy. The Federal Government may also treat immigration as commerce. People have been held by the Court to be part of interstate commerce to uphold the Civil Rights Act of 1964 (Atlanta Hotel v. United States and McClung v. Katzenbach). And the Court has ruled that the Federal Government has the authority to prohibit commerce such as lottery tickets in Champion v. Ames (1903) and any product that violated child labor laws in United States v. Darby (1941) which upheld the Fair Labor Standards Act of 1937. Hence, I find nothing illegal about the United States trying to prevent or prohibit immigration based on Commerce Clause precedent. The United States has had immigration laws for centuries and a border wall for decades to control immigration for national security reasons. Both Congress and the President are within their rights to do almost anything Necessary and Proper for national security reasons. The question is: Does the President violate the Separation of Powers by issuing an executive order or by having funding for the wall incorporated in an omnibus bill to bypass Congress? These actions do not violate Separation of Powers any more than Obama’s DACA executive order over immigration or Obama’s pet projects incorporated in the stimulus bills (green spending or the Race to the Top). If the Trump executive order to temporarily curb immigration from certain countries is seen as legal, then a border wall to curb illegal immigration is also legal. At the same time, spending, budgets, and appropriation bills are political questions to be decided between Congress and the Executive branches and the Court has no jurisdiction over these debates and decisions. The lawsuit filed by California and Bercerra is nothing more than an axe to grind against Trump and an effort to protect their sanctuary immigration laws. Trump should counter sue California to end their practice of sanctuary cities. It is ironic how most of the Court decisions, outlined in this blog, to defend the Trump wall where bad opinions either on their merits or methodology. But liberals often forget that Constitutional expansions can work both ways and bad decisions will eventually work against them over some issues. This is why interpreting the Constitution using originalism is best for both conservatives and liberals.
Saturday, September 23, 2017
I have not found too many cases where Liberal Justices correctly interpret the meaning of Constitution better than Conservatives outside First Amendment cases. The one area Liberals seem to do a better job is interpreting the Eleventh Amendment. Article III, Section 2 of the Constitution provides a list of judicial power provided to the Supreme Court. The list consists of cases between a State and Citizens of another State; and cases between a State or the Citizens thereof and foreign states, Citizens or Subjects. The 1793 case Chisholm v. Georgia was the first big case for the Supreme Court. In a 4-1 decision, the majority held that Chisholm (Citizen of South Carolina) had the right to bring a suit against a State (in this case Georgia). The Court held that the true sovereign power in the United States belonged to the people over the states. The lone dissenter, James Iredell held that States had sovereign immunity and could not be sued by a Citizen. Two years (1795) after the Chisholm ruling the Eleventh Amendment was added to the constitution: “The Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” This amendment repudiated the Chisholm decision held by the Court. However, in the 1810 case Fletcher v. Peck Chief Justice John Marshall made the following statement: “The Constitution as passed, gave the courts of the United States jurisdiction in suits brought against individual States. A State, then, which violated its own contract was suable in the Courts of the United States for that violation. Would it have been a defense in such a suit to that the State had passed a law absolving itself from the contract? It is scarcely to be conceived that such a defense could be set up. And yet, if a State is neither restrained by the general principles of our political institutions nor by the words of the Constitution from impairing the obligation of its own contracts, such a defense would be a valid one. This feature is no longer found in the Constitution, but it aids in the construction of those clauses with which it was originally associated.” In other words, Marshall does not necessarily think Chisholm was completely repudiated by the Eleventh Amendment. In Marshall’s view, Chisholm was a sound decision that still has a bearing on Constitutional interpretation. Nearly a century later in Hans v. Louisiana (1890) the Court held that Hans had no standing to sue Louisiana for interest on state bonds he never received because the Eleventh Amendment gave Louisiana sovereign immunity. This was not an easy decision since the Eleventh Amendment says “Citizens of another State” but Hans was from Louisiana. Yet, the Court decided that the founders meant to also include “Citizens of the same State” in the Eleventh Amendment. Interestingly, Justice Harlan concurs with the decision but says “The comments made about the decision in Chisholm v. Georgia do not meet my approval.” He would go on “Besides, I am of opinion that the decision in that case was based upon a sound interpretation of the Constitution as that instrument then was.” Fast forward another century later in the case Seminole Tribe v. Florida (1996). Congress passed the Indian Gaming Regulatory Act under the Commerce Clause. The Act imposed upon the States a duty to negotiate in good faith with Indian Tribes to generate a contract for gamming privileges. Congress certainly has the power granted under the Commerce Clause to pass this regulatory act since it applies to “Indian Tribes”. When the State of Florida refused to negotiate with the Seminole Tribe, they brought a suit against the state. But the conservative Court followed precedent set by Hans to deny Citizens the right to sue their State because Florida had Sovereign immunity granted by the Eleventh Amendment which restricted the application of the Commerce Clause. Sure, this decision provides states more power over the Federal Government, but it restricts the power and sovereignty of its Citizens. Justice Souter wrote the dissent to Seminole Tribe which was joined by Ginsberg, Stevens and Breyer. Souter rightly remarks “Because the plaintiffs in today’s case are citizens of the State they are suing, the Eleventh Amendment simply does not apply to them.” For this reason he also believes Hans was also wrongly decided. Souter also points out in Federalist 32 that States have no sovereignty over the regulation of commerce with Indian Tribes. Souter further acknowledges a proposed amendment by Massachusetts Representative Theodore Sedgwick after the Chisholm decision was never ratified. His amendment would have denied “Any Citizen” the right to sue “any State”. Souter asks why this proposal was denied in favor of the one ratified in the Eleventh Amendment? Good question! Finally, Souter admits “The American development of divided sovereign powers was made possible only by a recognition that the ultimate sovereignty rests in the people themselves.” This is certainly consistent with the Chisholm decision and Marshall’s remarks about Chisholm is Fisher. A year later, in Alden v. Maine, the Court made similar arguments and came to a similar decision in Seminole Tribe. I have to side with the Liberal Court on the Eleventh Amendment debate.
Wednesday, September 20, 2017
The Court made a stand against Commerce Clause expansion in United States v. Lopez, United States v. Morrison and more recently United States v. Bond. In these cases, the Court held that Federal gun laws, sex laws, and chemical laws were unconstitutional. In these cases, the Court distinguishes between economic issues regulated by commerce and noneconomic issues not regulated by commerce. The conservative Court did not try to overturn precedent, but instead placed limits on the Commerce Clause by not only pointing out noneconomic differences in these cases when compared to FDR economic rulings, but determining “what is truly national and what is local.” Justice Thomas points out “if Congress” as the dissent suggests “may regulate all matters that substantially affect commerce” then there would be no need to enumerate any Congressional powers since they would be covered by the dissents definition of commerce. The dissent also suggests that having federal gun laws are “rationale” and therefore that makes them constitutional. What the dissent fails to suggest is that all states had (and have) gun, sex, and criminal laws that would cover all these cases on the “local” level. Federal powers are superfluous in these instances and they offer nothing to help the prosecution of these crimes. The Court digresses again in Gonzales v. Raich striking down a California law that allowed sick persons, with prescriptions, to grow their own marijuana for personal consumption. In this case, the Court held growing marijuana for personal consumption was an economic activity. In Raich, the most cited case was Wickard which would make one think the decision was questionable at best. Justice Thomas best sums up the evolution of the Commerce Clause in his dissent “There is an inexorable expansion from ‘commerce’, to ‘commercial’ and ‘economic’ activity, and finally to all ‘production, distribution, and consumption’ of goods or services for which is an ‘established interstate market’”. Thomas further observes “Federal power expands, but never contracts, with each new locution, the majority is not interpreting the Commerce Clause, but rewriting it.” Thomas further says “This Court has carefully avoided stripping Congress of its ability to regulate interstate commerce, but it has casually allowed the federal government to strip States of their ability to regulate intrastate commerce – not to mention a host of local activities, like mere drug possession, that are not commercial.” In the ObamaCare case: NFIB v. Sebelius, although the Court found ObamaCare to be legal via the Spending Clause (ability to tax), the Court did strike down the constitutionality of both the Commerce and Necessary and Proper Clauses. This was important, because the individual mandate did not regulate any existing commercial activity. Roberts said “The Framers gave Congress the power to regulate commerce, not to compel it.” If the Court allowed the constitutionality of this law via the Commerce Clause Congress could pass a mandate for citizens to buy any product they deem as Necessary and Proper to regulate commerce. Yes, that is correct, it would have given Congress the power to regulate economic inactivity as commerce. The bottom line is that the definition of what is “commerce” has drastically changed from “trade” to include anything that is economic. Also, the definition of what constitutes necessary and “proper” has changed to mean anything that is “convenient”. The Court accomplished its goal of expanding the Commerce Clause by overruling past precedent. However, in more recent history, the Court has started to push back and yield more sovereignty back to the States.
Saturday, September 16, 2017
The Warren Court in Heart of Atlanta Motel v. United States and Katzenbach v. McClung used the Commerce Clause to uphold the Civil Rights Act of 1964. These cases were rightly decided, but by failing to apply the Fourteenth Amendment to these cases, it gave the Commerce Clause even more power. In South Dakota v. Dole the Court held that coercive tactics used by Congress were Constitutional. In this case, Congress was going to withhold a portion of South Dakota’s highway funding if they did not up the drinking age to 21. The Court held since the amount of funding to be withheld was only 5%, this did not amount to coercion, but incentive. In the past several decades the Supreme Court has tried to rein in some federal powers. Justice O’Connor in Gregory v. Ashcroft says federalism “assures a decentralized government that will be more sensitive to the diverse needs of a heterogeneous society; it increases opportunity for citizen involvement in democratic processes; it allows for more innovation and experimentation in government; and it makes government more responsive by putting the States in competition for a mobile citizenry.” Furthermore “the principal benefit of the federalist system is a check on abuses of government power.” In the same case Justice White’s dissent points out “As long as the national political process did not operate in a defective manner, the Tenth Amendment is not implicated.” In this case the Court held that the Federal Age Discrimination and Employment Act of 1967 did not apply to Missouri placing retirement age limits on Judges. In New York v. United States the Court held that Congress could not “coerce” States to participate in their mandated law to get rid of low-level radioactive waste. Justice O’Connor explains how delegates chose between the Virginia Plan and the New Jersey Plan at the Constitution Convention. The Virginia plan was chosen because the “expressed objection the New Jersey Plan was that it might require the Federal Government to coerce the States into implementing legislation.” Hence, the “Convention opted for a Constitution in which Congress would exercise its legislative authority directly over individuals, rather than over the States.” Justice White in his dissent claims that the Tenth Amendment does not apply because “We face a crisis of national proportions” and he further laments “For me, the Court’s civics lecture has a decidedly hollow ring at a time when action, rather than rhetoric, is needed to solve a national problem.” Justice Stevens said “Nothing in that history suggests that the Federal Government may not also impose its will upon the several States as it did under the Articles.” Of course, not a single person has been endangered because of this 1992 ruling. Yet, liberals suggest the law is necessary merely because the case was perceived to be a “national crisis”. In Printz v. United States in 1997 the Court held that Congress could not commandeer state officials to enforce the Brady Act to do background checks for handgun purchases. This was a weird case because liberals used conservative arguments and vice versa. Scalia uses the same argument previously proposed by O’Connor saying “The Framers explicitly chose a constitution that confers upon Congress the power to regulate individuals, not States.” Scalia actually point out what “destroys the dissent’s Necessary and Proper argument however, is not the Tenth Amendment but the Necessary and Proper clause itself.” The dissent provides the history lesson in this case. Justice Stevens correctly points out in Federalist Papers 27, 36, 44 and 45 provides examples of having state officials collecting federal taxes. Stevens also points out several examples of state officials carrying our federal laws such as naturalization lists, alien lists, and vessel seaworthiness. Stevens continued by claiming “In the name of States’ Rights, the majority would have the federal government create vast national bureaucracies to implement its policies. This is exactly the sort of thing that the early Federalists promised would not occur.” Yes, that is a liberal Justice providing a history lesson referencing Federalist Papers and worrying about the size of government. As I said, this case was a like reading a Twilight Zone script. Despite Stevens convincing arguments, Justice Thomas in his concurring opinion makes the most convincing argument saying the Federal Government had no right to regulate guns because the Second Amendment provides persons the right to “keep and bear arms”. However, that argument was never raised by any of the parties during written or oral arguments. Stevens brings credence to Thomas’s argument by saying “Unlike the First Amendment, which prohibits the enactment of a category of laws that would otherwise be authorized by Article I, the Tenth Amendment imposes no restriction on the exercise of delegated powers.” So, if the First Amendment is applicable to curb federal power, maybe the Second Amendment could curb federal power too? That was a good question at the time, but this question was not answered until more recent cases Heller v. DC and McDonald v. Chicago.
Thursday, September 14, 2017
Separation of powers was one of main theories our Constitution was founded. Most of us are familiar with the separation of powers that provide checks and balances between the Legislative, Executive, and Judicial branches of our federal government. These concepts were not new, they were proposed by French philosopher Baron de Montesquieu in the early 1700s and adopted at the Constitutional Convention. The novel concept created by our founding fathers was a different type of separation of powers: federalism. Federalism is dual government formation between the Federal Government and State governments. There are two ways the Constitution structure supports federalism. First, Congress powers are enumerated and well defined and secondly, the Tenth Amendment grants the states and its citizens all other functions of government not enumerated in the Constitution. In the Federalist Papers James Madison points out the Federal Government has very few powers and the States have many. No question the federal government powers have expanded much more than our founders would have expected or wanted through the use of the Spending Clause, the Necessary and Proper Clause, the Commerce Clause, and the Supremacy Clause. The assault against the States started early in our history when the Supreme Court used the Commerce Clause combined with the Necessary and Proper Clause to overturn precedent. In a two year period the Court overturned the Legal Tender cases just after the Civil War. Initially, the Court ruled that although Congress had the Power to Coin Money, they did not have the power to make Paper Money. That was overruled because it was deemed Necessary and Proper for Congress to issue paper money to fund the War effort. The Court also said in the Legal Tender cases that it is not enough to affirm a law is unconstitutional but it must be proven without a doubt it violates the constitution. In other words, legal decisions should favor the Federal solution over a State solution. The opinion further stated “convenient” measures are necessary and proper and the “degree of the necessity for any congressional enactment, or the relative degree of its appropriateness, if it have any appropriateness, is for consideration in Congress, not here.” Once again, the benefit of the doubt should be with Congress. In Champion v. Ames (the Lottery Case), the Court decided that the Federal Government could regulate lottery tickets giving them the power to not only regulate commerce, but to prohibit commerce. Justice Harlan in his majority opinion noted “But surely it will not be said to be a part of anyone’s liberty, as recognized by the supreme law of the land, that he shall be allowed to introduce into commerce among the States an element that will be confessedly injurious to the public morals.” In other words, it is okay to regulate something like gambling since in his view it is a bad habit. In the early part of the nineteenth century, the Court denied Congress commerce regulatory power over anything that was economic in nature. The Court held a strong position that Commerce was trade and it did not include manufacturing, production, or economic laws. In Hammer v. Dagenhart, the Court held that Congress had no authority to regulate child labor laws (wages, hours, minimum age, etc.). In United States v. E.C. Knight Company the Court held that manufacturing was not part of commerce and denied Congress the authority under the Sherman Anti-Trust Act to break up the sugar trust (monopoly). In Schechter Poultry Corporation v. United States the Court held FDR’s “Poultry Code” in the National Industrial Recovery Act unconstitutional. Congress did not have the power to regulate everything economic in the Poultry business. In Adkins v. Children’s Hospital the Court held that a minimum wage law for women was unconstitutional. But things would change when in West Coast Hotel Company v. Parrish overturned the Adkins decision just a decade later. The Court established the “substantial effects doctrine” in the case NLRB v. Jones & Laughlin Steel. The Court held that the Steel Company was engaged in “unfair” labor practices. The Court justified its decision by claiming anything “affecting” commerce can be regulated. The Court also ruled in this case that intrastate activities could also be regulated if they have a “substantial effect” or relationship with interstate commerce. United States v. Darby was an important case because it wiped out previous precedent set in Hammer v. Dagenhart and Carter v. Carter Coal Company decided just a year earlier. Previously, the coal industry was not considered commerce (it was a manufacturing business), but Darby said “manufacturing” was now commerce as well as other economic activities such as wages and hours. Justice Stone’s majority opinion disregards the Tenth Amendment as a “truism”. In other words, the Tenth Amendment has no meaning because it is widely understood that those powers not enumerated to Congress in the Constitution would fall to the states. Stone obviously had a very broad definition of commerce that was beyond its dictionary definition. The biggest blow to State rights was the Wickard v. Filburn case where the Court held that a man (Filburn) could not exceed his wheat crop quota outlined in the Agriculture Adjustment Act even if the excess was for personal use. The Court said (hypothetically) if everyone did what Filburn did, it would have a “substantial effect” on commerce. These cases gave Congress the power to regulate anything economic regardless if it was interstate or intrastate commerce: Congress merely had to deem the “activity” had a “substantial effect” on commerce. In United States v. South Eastern Underwriters the Court overturned Paul v. Virginia which now held that insurance was commerce that could be regulated by Congress.
Sunday, September 10, 2017
Trump said the Deferred Action for Child Arrivals (DACA) will end in six months if Congress cannot come up with a comprehensive immigration policy. This plan is a smart move by Trump because it places the burden on Congress to act once and for all. Here are some reasons why this is an ingenious move on the part of Trump: • The liberal outrage from the DACA decision only shows the ignorance of Democrats, liberals, and the media. These fools make it sound as if Trump ended a good law. No president can end a law, only Congress can generate and appeal a law. What Trump ended was an Obama executive order. An executive order is not the law of the land. It can be ended at any time by any president. DACA can at best be called a “temporary” measure. DACA does not fix any problem, it just kicks the can down the road. Anyone can listen to prior statements by Obama suggesting that he cannot bypass Congress to make a new immigration law and that any executive action is only a temporary fix to understand the true status of DACA. Obama and Democrats had supermajorities in 2008 and decided not to act on immigration reform. Hence, any statements by Obama and Democrats criticizing Trump’s actions are disingenuous as best. • Trump’s actions already incited a negative response from Obama. Obama has broken a long-standing tradition to not criticize a predecessor. This reveals Obama’s true political side of pettiness and misinformation about his DACA executive action. • Trump can force both Republicans and Democrats to come together to finally put forth immigration reform. If Democrats want to save DACA then they may have to negotiate with Republicans to pay for a boarder wall and higher border security. Republicans can also push for more stringent immigration laws including higher sentences for violators of immigration laws as well as ending sanctuary cities. Republicans can also insist upon that there will never again be any amnesty for any illegal aliens. If Democrats refuse to come to the bargaining table, then they can be painted as the racists for failing to save DACA. I truly believe that Trump has put Democrats on the spot and given Republicans leverage and the upper hand for negotiations. If Congress fails, then Trump can revisit DACA and he can save the day if he wishes to do so. • If Congress preserves DACA while at the same time Trump enhances border security, then it will refute all the ignorant claims of liberals calling him and Republicans White Supremacists and racists. • Trump is only overturning bad precedent (Presidents do not make law). No president should violate the Constitution by legislating unilaterally via executive order, especially over highly controversial and vastly complicated issues. Trump is actually following the law, Obama did not. Wouldn’t liberals object if Trump passed, through executive action, bans on abortion or tax cuts for the Wall Street CEOs? They would and they would be correct. • Trump’s action should instigate dozens of suits that will hold very little merit and will ultimately fail before a majority of courts including the Supreme Court. Even lawsuits trying to block the data obtained from the DACA program from being used by immigration enforcement may not prevail. However, this may be the best chance that liberals have at winning a case. • Trump’s actions are exposing DACA for what it truly is: “a lie”. The average age of a person in the DACA program is 23 years old. DACA is therefore not about protecting children. Remember, it is the fault of the children’s parents, not legislators or the president. They put their children in the situation they are in. If DACA is permitted to continue it will only influence and encourage tens of thousands of more illegal aliens to come to the United States. DACA is not a sustainable law if it is allowed to continue especially since DACA recipients in most states can collect welfare. Finally, not all DACA recipients are law abiding citizens working jobs that American Citizens do not want to do. DACA will continue to grow unless it is halted with a comprehensive immigration plan. This is what should happen on DACA: 1. Pass DACA with the caveat that the parents get deported for their children to stay. If parents do not want to be departed the entire family should be deported. 2. Money should be provided for a border wall and better border security. 3. Make Sanctuary Cities illegal. 4. There will be no other amnesty granted in the future for illegal aliens for any reason.
Thursday, September 7, 2017
It has not been uncommon for the Supreme Court to invent fundamental rights not found in the Constitution. Two Fundamental Rights the “right to marry (gay marriage)” and the “right to an abortion” make very little sense. In fact, the Court may have well combine these two rights into one: the “right to be selfish”. Let me explain further in this article. Both of these rights were born from the invented fundamental “right of privacy” decided in 1965 case Griswold v. Connecticut. In 1973, the Court ruled in Roe v. Wade that women had the “right” to an abortion. This is selfish for two main reasons. First, a women can have an abortion for no reason other than she does not want the baby. A women has other alternatives such as putting the child up for adoption. Without even considering the fact that an abortion kills a living person, the choice of abortion is selfish. Secondly, a woman can have an abortion without notifying the father of the child even if the father is married to the women having the abortion. In other words, the decision is a selfish one because it only has to consist of one person to make a decision of such importance. In fact, in Planned Parenthood v. Casey, four dissenting members of the Court held a minor did not have to notify their parents to have an abortion. The gay marriage case in 2015 Obergefell v. Hodges granted people the fundamental “right” to marry. The Court cited three marriage cases in their decision. In 1964, the case Loving v. Virginia ruled that interracial marriages were legal. In 1978, the case Zablocki v. Redhail the Court decided a state statute that denied a person from marrying because they owed child support was unconstitutional. In 1987, the case Turner v. Safley the Court held prison laws denying inmates the privilege of marriage was unconstitutional. However, these cases are much different than Obergefell. First, they were traditional marriage cases and secondly, people violating the laws in these statutes were subject to criminal charges. Another case, Windsor v. United States in 2013 ruled the federal law: The Defense of Marriage Act was unconstitutional. Obergefell and Windsor were unique for other reasons. Obergefell was one of many plaintiffs and if we include Windsor as a plaintiffs, all of the plaintiffs have something in common: their partners were dead. They filed suit not because of love but because they wanted the “benefits” or government entitlements that go along with marriage. Thus, marriage is not a discriminatory tradition, what is discriminatory are government laws interfering with marriage and placing entitlements to go along with the tradition. Both Obergefell and Windsor cases arguably had no standing in the Supreme Court since they were not facing any restrictions against their liberty: The plaintiffs did not face criminal prosecution, gay marriage was legal in many states, and even when California granted gay marriage partnerships equal benefits, that was not enough. What makes gay marriage selfish is their wanting government entitlements, it has nothing to do with love. Marriage was just as vital in the colonial era as it is today but our founders make no mention of marriage in the Constitution. Fundamental rights should be something that is deep rooted in American history and this something gay marriage and abortion are not. Fundamental rights are for each person, not a group of people. Fundamental rights such as “liberty” protect each individual from government intrusions, restrictions, and discrimination. That is not case in either abortion (unless you consider the child) or gay marriage. Although the Court cites the right to privacy in Griswold v. Connecticut in both cases, does privacy really apply? Other than trying to conceal having an abortion from a spouse, there is nothing private about abortion or marriage. This is the danger of inventing a broad and ambiguous Fundamental Right (privacy): it leads to other unwanted rights. Now what can we expect: the right to polygamy, the right to late term abortions, the right to euthanasia, birth quotas, sterilization, and so on.
Tuesday, September 5, 2017
One would think an event like Hurricane Harvey would draw Americans closer and put aside political differences, at least for a while. I believe events like Harvey are now working to polarize and divide Americans further. It is sad, but pundits cannot wait to throw their political rhetoric over the situation. The man-made climate change stories have hit the front page, of course blaming this storm on global warming. If that is not bad enough, other pundits are calling the victims of the Hurricane hypocrites. These stories portray the victims as Nazis, Anarchists, and Secessionists who are being saved by big government. Because of this portrayal of ALL Texas residents as being racists, bigots, and Trump supporters, the State got what it deserved. The latter stories are stereotypical because it assumes ALL Texans are Nazis, Anarchists, and Secessionists. However, the area’s most affected by Hurricane Harvey are located in Harris County and the large metro areas of Houston, Beaumont, and Port Arthur. These areas demographics consist of a large number of minorities and Democrats. Also, Romney won Texas by nearly 20 points in 2012 and that margin was reduced by more than half in 2016. In other words, a lot of Texans had a rough time voting for Trump. That aside, the stereotyping of Texans is wrong for a number of reasons. First, most of the people conducting rescues were not working for the government, they were average citizens using their own resources (boats) to save the lives of Americans regardless of their gender, race, or creed. Without this type of cooperation, hundreds more would have perished. Secondly, Leftist confuse extreme right-wing behavior with that of moderate limited government. There is a big difference between extremism and folks who want a responsible government. And those who believe in a limited government believe one role of government is to protect citizens from rogue nations and natural disasters (common defense). Most Americans have no issue with the local, state, and federal governments spending money to protect citizens (common defense). On the other hand, they have an issue with the federal government spending money on issues not enumerated in the Constitution. This type of behavior (stereotyping of citizens) is dangerous for many reasons. First, it is a lie. To classify a State in a category of persons that probably consists of less than 5% of the population is politics at its worst. Secondly, and most importantly, the behavior of those doing the stereotyping is no different than the behavior of those they are classifying as extremists. The history of slavery, gender bias, and other discriminatory behavior in this country was carried out by persons who stereotyped. Yes, stereotyping is a form of discrimination. Southern slave owners stereotyped slaves as being inferior, Eugenicists stereotyped the deformed, intellectually challenged, and other so called “undesirables” as being inferior, and a great number of males stereotyped women as being inferior. Now, we have a great number of Leftists and Democrats stereotyping Texans as being inferior because they are ALL racists, bigots, and non-conformers to the climate change agenda. Stereotyping is hate and it is no different than the position taken by very dangerous persons in our scared history that led to tragic events such as the Civil War. Yes, those stereotyping citizens today would be of the same mind set as those doing discriminatory stereotyping in our history. These are dangerous people. History has a way of repeating and if Antifa and newspapers want to continue to stereotype ALL whites, conservatives, and Republicans into a class of people they are not then the political divide will continue to grow and get worse.
Friday, September 1, 2017
Liberals claim to be the Party of the minority or the middle class, but that is hardly true. They have used WWI, WWII, and the Great Depression to expand federal intrusions over our personal liberties. They accomplish this by claiming it was necessary because of emergencies such as war or a depression. However, these new powers are not temporary grants, they are permanent. In the name of emergencies we have seen the Court uphold Korematsu v. United States allowing our government to intern 125 thousand Japanese Americans. During WWI we saw the Court uphold the liberal Espionage Act by placing limitations on free speech. The Court held in Schenck v. United States that harmless pamphlets written by the defendant placed a “clear and present” danger and were not free speech. During the Great Depression we saw the Court uphold FDR policies to regulate anything considered economic including how much a wheat a farmer could grow for personal consumption. Most, today, hail all of the FDR economic regulations over work hours, wages, and child labor (this is not trade!). I remember the hassle of trying to get a job as a youth because I was underage. However, I was persistent and started working in restaurants at age 11. I was paid minimum wage under the table. I was not abused and it was my choice so I can save money to go to college. My family was poor and we needed money. This is how these laws prohibit “liberty”. Even as early as the Civil War the Court expanded its “commerce” and “necessary and proper” powers in the Legal Tender cases. These cases allowed the Federal government to not only “coin money”, but to create paper money. Liberals have made similar types of decision for safety purposes or in the name to eradicate evil. The progressive Court gave the federal government the power to not only regulate, but to prohibit commerce. Gambling and the lottery were considered vices and hence the Court granted the federal government the right to prohibit lottery tickets from going across state lines (this is not trade!). In Plessy v. Ferguson the Court said that “equal but separate” was not discrimination and it was therefore constitutional. The Court theorized having Whites and Blacks separate was needed for safety purposes. In Bradwell v. Illinois the Court held that a woman who was denied practicing the law (she had a law degree) was constitutional for her safety since woman could not hold up to the rigors of hard work. In Buck v. Bell the progressive Court held that sterilizing the intellectually challenged was needed to clean up our gene pool for the safety of Americans. In Skinner v. Oklahoma, the Court finally placed some limitations on sterilizing violent prisoners in the name of public safety to rid our society of evil. In the Slaughter House cases, which is taught today as being a sound decision, the Court wrote the privileges and immunities clause out of the Fourteenth Amendment. That clause was passed just 5 years earlier and was intended to apply the Bill of Rights and personal liberty to the states (to stop discrimination). That is something important to write out of our Constitution. Of course, there is Roe v. Wade that allows the abortion of a child for no reason other than that the women does not want the baby. That is evil beyond anything imaginable and defies human decency. Some may say that many of these cases are old laws and they would not happen today. That being said, many of these precedents have never been over turned: Korematsu, Buck, and Schenck are still valid laws. Consider the 2010 case United States v. Comstock where the Court ruled that a federal statute which allowed the government to hold violent criminals and sex offenders in prison longer than their sentences. I have always been in favor of longer sentences for violent and sex crimes, but this is not the way to do it. Holding over prisoners past their sentences is an obvious violation of their personal “liberties”. Liberties are violated anytime the government constrains or restricts personal freedoms and that is what is happening in Comstock. What is even scarier is that the Court expanded federal powers through the necessary and proper clause to uphold this statute. In his concurring opinion, Justice Kennedy cites one of the worst Supreme Court decisions of the 1950s: Williamson v. Lee Optical. The Court said “But the law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that might be thought that the particular legislative measure was rational to correct it.” Remember, the Court denied Lee Optical the right to do what Lens Crafters has done for decades. Kennedy would further argue “This is a discrete and narrow exercise of authority over a small class of persons already subject to the federal power.” In other words, the statute is permissible since it only violates the “liberties” of a few prisoners. This is the definition of discrimination, the statute does not treat all prisoners the same. Comstock is aimed at “protecting society from acts of sexual violence, not toward “carrying into Execution” any enumerated power”. Justice Thomas says the statute “comes perilously close to transforming the Necessary and Proper Clause into a basis for the federal police power that we have rejected.” In fact, not one of these laws or cases are necessary because they do not help carry out an enumerated power.
Tuesday, August 29, 2017
The Assault on Religion: The assault on religion started in the 1947 case Everson v. Board of Education. The Establishment Clause says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” It should come as no surprise that the first 160 years of our history there was little controversy over the Establishment Clause. The controversy only started over the past 70 years due to hurt feelings and people being offended by religious practice. In Everson, the Court sided with the New Jersey state government reimbursing student’s bus fare to attend religious schools, but Hugo Black’s majority opinion introduced Thomas Jefferson’s “wall of separation between church and state” comment from a “courtesy” letter written to a Danbury Connecticut Baptist Church. Separation of church and state is not in the constitution and Jefferson did not participate in the writing of the Constitution nor in the Bill of Rights (He was in France working as US Ambassador). Therefore, Jefferson’s interpretation of the Establishment Clause does not show the true intent or meaning of the clause. James Madison drafted the Bill of Rights and his interpretation of the clause should hold more weight. But the Court has taken this one Jeffersonian statement, uncorroborated by other founders as the true meaning of the Establishment Clause. The separation of church and state comment does not even corroborate Jefferson’s actions as President who would regularly attend Church services held in the House of Representatives chambers. The Establishment Clause’s true intent was to prevent what happened in England when they established the Church of England. In fact, the Establishment Clause does not stop states from establishing religion. States, like Massachusetts, were founded and established by the Puritan Church. Hence, the goal of the clause was to prevent a National Church and religion. Bruce Fein, former associate deputy attorney general said this of Black in his Emerson decision “Black, however, seemed to sense the absurdity of his categorical prohibition, which would have required public ambulances to deny service to a cleric who suffered a heart attack which preaching from the pulpit. Accordingly, he immediately retreated from his unbending stance – but without saying so.” The separation of church and state doctrine opened the flood gates to dozens of cases of people claiming to be tormented by religious practice. In 2002, the Court held in Zelman v. Simmons-Harris that the state of Ohio could issue education vouchers for students to attend private religious schools. The Court held that the vouchers could be used for any religious school and therefore did violate the Establishment Clause. However, in 2004 the Court held in Locke v. Davey a Washington State scholarship program could bar funds to students majoring in Theology. In 1992, the Court held in Lee v. Weisman that graduation prayers were unconstitutional because it “psychologically coerces” prayer on students who do not practice religion. In other words, prayer made non-religious persons feel uncomfortable. This decision essentially elevated the right “not to feel uncomfortable” to over the practice of religious liberty. In 2004, the Court held in Elk Grove School District v. Newdow that the phrase “under God” in the Pledge of Allegiance did not violate the Establishment Clause. However, stare decisis from Weisman should have led the Court to strike those words out of the Pledge (Using the Ninth Circuit’s logic). The only reason Newdow did not change the words of the Pledge was because a majority of liberal justices said Newdow did not have standing to file suit otherwise our Pledge would have fallen victim to political correctness. The obvious next step of religious intolerance groups would have the words “In God We Trust” stricken from our currency. Justice Kennedy wrote the Weisman decision and then dodged his precedent by claiming “no standing” in Newdow because he saw how unworkable and dangerous his precedent in Weisman was. There have been numerous cases contesting the display of the Ten Commandments on public property such as in state capital government buildings. In McCreary County v. Kentucky ALCU (2005) the Court held that a Ten Commandments display was unconstitutional while in Van Orden v. Perry (2005) the Court held a Texas capitol Ten Commandments display was constitutional. It is just a matter of time before the Declaration of Independence is a banned document on public grounds and in our schools because it makes many references to God. The bottom line is that separation of church and state by building a wall between the two is completely unworkable. In Chief Justice Rehnquist’s opinion in Wallace v. Jeffree (1985) he outlines a dozen’s examples of how the Court’s jurisprudence conflicts such as “parochial students may receive counseling, but it must take place outside the parochial school” or “A state may give cash to a parochial school to pay for the administration of state-written tests and state-ordered reporting services, but it may not provide funds for teacher-prepared tests on secular subjects.” Separation of church and state is nothing more than political correctness where atheists or non-believers may feel offended, annoyed, or have some hurt feelings. This is no different than what is happening in the Masterpiece Cake Shop case. There is no longer any tolerance or patience for religious beliefs in our country. Religious Liberty has been under assault for decades. The Colorado Anti-Discrimination Commission’s decision to classify Masterpiece Cake Shop as a discriminatory business in the same sense that a White Supremacist’s discriminates is not just unfair, but it demonstrates how little tolerance and patience government laws have for religious liberty. The Court and Political Correctness: The Constitution does not distinguish between genders or races. However, that has not stopped the Court from introducing gender (Roe v. Wade, abortion) and race (Grutter v. Bollinger, diversity) into their opinions. What does diversity say about our country? It not only endorses reverse discrimination, it wrongly asserts that African-Americans are not equal to other Americans which stigmatizes the accomplishments of African-Americans who will always be seen as benefitting from skin color than on merit. But conversely, this Court has ignored the word “citizen” in the Constitution to provide aliens and illegal aliens the same rights as citizens. This is wrong for several reasons. First, the Court has no say over immigration laws since Article I, Section 8 states Congress has the power “to establish a uniform Rule of Naturalization.” Secondly, the Court has ignored earlier precedent in Heim v. McCall (1915, New York could hire citizens over aliens for transit projects) and Ohio v. Clarke Deckenbach Auditor (1927, once again the Court rejected a Fourteenth Amendment Equal Protection Clause argument making aliens equal to citizens). However, in Graham v. Richardson (1971) the Court held minimum residency requirements for aliens to receive welfare benefits were unconstitutional. In Hampton v. Mow Sun Wong (1976) the Court held citizenship was not required to hold a government job under the Equal Protection Clause. In a 1973 case Sugarman v. Dougall, the Court invalidated a New York statute requiring civil servants to be citizens. In Plyler v. Doe (1982), the Court held illegal aliens had a right to a public-school education. This Court has provided enemy combatants equal rights as U.S. citizens. In the 2004 cases between Rasul v. Bush and Hamdi v. Rumsfeld the Court decided war criminals who kill American soldiers and hide behind innocent civilians have the right to have their detention cases heard in federal court. These are rights that are not even afforded to our own military personnel who must use military tribunals for justice, not the federal court system. Time and time again, this Court sides with non-citizens over our own citizens. The Supreme Court has no jurisdiction over war decisions, and it once again ignored previous precedent in Johnson v. Eisentrager (1950) when affording prisoners of war more rights. These decisions endanger national security because sensitive information must be made public at trials. Can anyone imagine the circus if the Court made a similar ruling during World War II? Prisoners of war would be making hundreds, if not thousands of appeals to federal courts. If the goal is to make it easier for the enemy to be released so they can return to the battlefield and resume killing Americans, then the Court succeeded. The moral of the story is that the Court will use Social Justice and Political Correctness to “protect” perceived disenfranchised groups of people at the expense of more qualified persons or actual US citizens. The Court finds color or race in the Constitution where there is none, and omits citizenship from the Constitution where there are nearly a dozen references including in the Fourteenth Amendment used to invalidate citizenship rights while elevating illegal aliens’ rights. In fact, the Court has provided enemy combatants more rights than our own military personnel. This practice of social justice and political correctness has carried over into state statutes such as the Colorado Anti-Discrimination Act (CADA) to protect classes of people unidentified in the Constitution at the expense of people practicing rights (free speech and religious liberty) enumerated in the Constitution. Justice Thurgood Marshall said this of White people, “You guys have been practicing discrimination for years. Now it is our turn.” The Court should not be in the business of inventing minorities to protect, promoting vengeance over past wrongs, or discriminating for any reason. Justice Scalia said it best “To pursue the concept of racial entitlement—even for the most admirable and benign of purposes—is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of government, we are just one race here. It is American.” [Adarand Constructors Inc. vs. Peña, 1995]
Saturday, August 26, 2017
4. Fundamental Rights Fundamental Rights elevated by this Court via the Ninth or Fourteenth Amendments, should not conflict with enumerated Fundamental Rights. Nor should elevated Fundamental Rights be controversial. This may be a necessary evil, but conflicting and controversial rights work to polarize the general public instead of uniting them. For instance, abortion and gay marriage rights conflict with natural enumerated rights such as Life and Religious rights. Abortion and gay marriage conflict with previously elevated rights such as procreation (Skinner v. Oklahoma, 1942). For these reasons, abortion and gay marriage have moved from state rights issues to national issues literally dividing the country in two. Troxel v. Granville is an example of a properly elevated Fundamental Right (the right of parents to make decisions for their children) because it is not controversial or conflicts with other Fundamental Rights. Troxel is good law because it widely accepted and has not created any national polarity or divisive politics. When Fundamental Rights collide, in the absence of discrimination, the Court should side in favor with the enumerated right. The Constitution and Bill of Rights have lasted over 200 years without any serious modifications. The Court could consider some type of jurisprudence standard to overcome such conflicts which undoubtedly will continue to occur. The Court faced a similar dilemma when medical advancements made late term abortions safer, but at the same time made the viability of the fetus earlier in the pregnancy. In Webster (1989) and Casey (1992) the Court disregarded the trimester system formulated under Roe and created the “undue burden” standard which exists today to deal with the conflicting Fundamental Rights of Life and Abortion. The natural law due process philosophy (freedom of contract) founded in Lochner v. New York (1905) and enforced in Adkins v. Children’s Hospital (1923) was repudiated in West Coast Hotel v. Parrish (1937) and finally revitalized in Loving v. Virginia (1967), Griswold v. Connecticut (1965), Roe v. Wade (1973), Troxel v. Granville (2000), Lawrence v. Texas (2003), Raich v. Gonzales (2007, Ninth Circuit), and Obergefell v. Hodges (2015). In all the above cases Meyer v. Nebraska (1923) was cited by the Court. The Court held in Meyer, “without doubt, it denotes not merely the freedom from bodily restraint but also the right of the individual to contracts to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally enjoy those privileges long recognized as common law as essential to the orderly pursuit of happiness by free men. The established doctrine is that this liberty may not be interfered with under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the State to effect.” In Adair v. United States (1908) Justice Harlan declared “the right of a person to sell his labor upon such terms as he deems proper is, in its essence, the same as the right of the purchaser of labor to prescribe the conditions upon which he will accept such labor the person offering to sell.” This can be read to be the freedom of contract between employer and employee (repudiated in West Coast Hotel v. Parrish), but the same contract conditions exist between a business and customer (and this has not been repudiated by the Court). Although freedom of contract between employer and employee have been repudiated, the contract between business owners and customers “to engage in any of the common occupations of life” is still good law in Meyer. Since CADA does not address the rights of business owner’s religious or free speech liberties it is a flawed law. In United States v. Fisher (1805) the great Chief Justice Marshall declared “Where rights are infringed, where fundamental principles are overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness to induce a court of justice to suppose a design to effect such objects.” This Court needs to decide what is more important: natural and enumerated First Amendment rights or elevated conflicting and controversial social rights. 5. Scrutiny (Rational Test) In Hobby Lobby v Burwell the Court held that a company can deny certain contraceptives (abortifacients) from women in their healthcare plans. In fact, a vast majority of states have statutes protecting pharmacists from handing out abortifacients if it opposes their religious beliefs. Most states also exempt doctors and nurses from performing abortions if it is against their religious beliefs. Abortion is held to the rational basis test of “undue burden” decided in Casey v. Planned Parenthood (1992). The courts in these states and in Hobby Lobby say abortion fails to meet the “undue burden” test for two reasons. First, there are literally a dozen of other types of contraception available to women other than abortifacients. Secondly, there are a far greater number of healthcare plans, doctors, nurses, and pharmacists willing to cover, prescribe, or handout abortifacients or perform abortion surgeries. In other words, it is not an “undue burden” because women have many more choices than exclusions for these services. The Masterpiece Cake Shop case is not much different since homosexual partners can choose from a wide range of products except for a gay wedding cake and there are literally dozens of bakeries in the Denver Metroplex that would be willing to make a gay wedding cake. The precedent in Atlanta Hotel v. United States and Katzenbach v. McClung in 1964 using the Commerce Clause to eliminate discrimination in public places (in these cases: hotels and restaurants) does not really apply. Although it is easy to see how these cases could be used to apply to a bakery business, these cases used a low level rational base scrutiny since no liberties of the business owners were violated. However, in Masterpiece Cake Shop, the business owners Fundamental First Amendment Religious and Freedom of Speech liberties were violated. Hence, strict scrutiny is required to uphold CADA. RFRA calls for the Court to protect religious discrimination using strict scrutiny. Also from Gonzales, the Chief Justice outlines the test for a state or federal law to abridge religious liberty: “1. Is in the furtherance of a compelling government interest 2. Is the least restrictive means of furthering that government interest”. If prevention of discrimination for protected groups is the compelling state interest for CADA, then it must be the least restrictive way to further that interest. Based on the “undue burden” test listed previously, CADA fails on both points. First, if CADA is to prevent discrimination, then it should protect both customers and business owners equally. It should not protect customers at the expense of store owners. Secondly, with absolutely no exceptions to CADA, it is impossible it may be enforced in the least restrictive manner since it treats true discrimination and religious liberty as one of the same. In Gonzales, Chief Justice Roberts says RFRA protects people and business from “’neutral’ laws toward religion may burden religious exercise [conduct] as surely as laws intended to interfere with religious exercise”. Furthermore, the compelling test “strikes a sensible balance between religious liberty and competing prior governmental interests”. This case is no different: a neutral law on its face prohibits the exercise of religious beliefs. The state should therefore, be able to “strike a sensible balance” between religious liberty and perceived discrimination. Consider an example of a cake maker whose schedule is full but gets a request to make a gay wedding cake. In fear of refusing to make the cake or face discrimination claims, the cake maker notifies a non-protected class customer he erred by taking their order and cannot make their cake due to schedule limitations. Is this fair? Is this discrimination? Is this the type of owner reaction the commission wants from CADA? Summation CADA is bad law because every instance of denial leads to hurt feelings and offended persons claiming discrimination when in fact we are seeing nothing more than political correctness. The law has proven to be hypocritical in its application and it fails to protect the rights of business owners. We are at a crossroads in America. We see our new generation of young Americans who refuse to respect the First Amendment at our colleges. They refuse to tolerate other opinions and open debate over issues. This generation does not respect the peaceful transfer of power already wanting to impeach a president with no chargers or crime. To deny both the enumerated rights of free speech and religious liberty to elevated social justice rights rising from perceived discrimination from political correctness would be an injustice. It would further the assault on our First Amendment in America. The Court needs to take a stand and show our First Amendment is still valued over political correctness. Hurt or offended or annoyed feelings does not constitute discrimination. Please put an end to the insanity of this never-ending convergence between Social Justice and Religious rights once and for all with some sound jurisprudence. We live in the greatest country on the face of the earth. We are all lucky to be Americans. In over a third of the nations around the globe Christians and gays are still persecuted and have no rights. Masterpiece Cake Shop realizes this fact and that is why they will not make any anti-American cake – anything that portrays America in a bad light. There will be no cakes celebrating 9/11 or anything supporting the message conveyed by Westboro Baptist Church. Our country is so special that Christians and gays can argue a case about a wedding cake in front of the Supreme Court. That is special and it needs to be protected without infringing on Religious and free speech liberties that our country was founded. The Fifth Amendment says, “nor be deprived of life, liberty, or property without due process of the law”. In Dred Scott v. Sanford (1857) Taney interpreted this as denying property to slave owners without due process of the law. Taney never considered the denial of liberty without due process of the law to slaves. Taney provided slave owners with preferential treatment over slaves. When Fundamental Rights collide and the Court favors one side over the other it never ends well. It will be controversial. One Hundred and Sixty years following Dred Scott and we still have not learned our lesson. The Colorado commission has failed to seriously consider Masterpiece Cake Shop religious or free speech liberty and instead labeled them as a discriminatory and a racist business. This is similar to what happened in Dred Scott. The Colorado commission provided preferential treatment to one class of individuals over the other without seriously considering the consequences of their actions. In McMullen v. Coakley (2014) the Court held to discriminate against one group of persons at the expense of another is never warranted for any reason. Speech laws are to be neutral and therefore business owners also deserve equal protection under the law. Justice Harlan in his dissent in Plessy v. Ferguson said, “In respect to civil rights, all citizens are equal before the law.” Instead, the Colorado Anti-Discrimination Commission has a history of siding with the perceived most disenfranchised group. In his dissent in the Civil Rights Cases of 1883 Harlan said, “No government ever has brought, or ever can bring, its people into social intercourse against their wishes.” Harlan was on the right side of history in these cases.
Tuesday, August 22, 2017
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.