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Last year at this time, I talked to you about the constitutionality of Christian nativity scenes under the Establishment Clause of the First Amendment of the United States Constitution. I told you how the rule evolved over time to allow nativity displays in public places, but only if they are deemed to serve secular purposes such as celebrating a holiday or depicting the origins of that holiday. The displays that have passed constitutional muster in recent years have all included non-Christian symbols, like plastic reindeer, leading some to derisively call the current state of the law on this subject the ‘reindeer rule’. I showed you how, through the wizardry of Supreme Court jurisprudence, the Establishment Clause – which, on its face, has nothing to do with passive religious displays – is now the ‘endorsement clause’ – Congress shall make no law constituting an endorsement of religion, or appearing to favor one religion over another. Originally, the Establishment Clause was addressed to situations, like in my own state of Virginia, where the government in colonial times had ordered everyone to attend a particular church and had even paid the ministers. That’s the establishment of a state religion, no question about it.
But now that Pandora’s Box has been opened – can I say that without endorsing Greek mythology? - the issue will probably never go away. Three current situations show how the battle continues. In the first, a 4-foot Satanic statue is now on display in the Illinois state capital building alongside a nativity scene. The Satanic Temple of Chicago – which says it’s merely a benevolent association – applied to display the statue and the Illinois state government decided the group has the same rights as any other religious organization, so its display could not be censored. The Satanic Temple says it does not actually worship Satan; it’s just a group of atheists, humanists, and free speech activists. So how is that a religion? The Supreme Court has never really defined ‘religion’ beyond saying it must be a set of sincerely held beliefs, no Deity required. [Chemerinsky, Constitutional Law: Principles and Policies (4th ed. at 1231-34]. Atheism and humanism certainly qualify under that loose definition. The second situation involves a 4-story tall World War One memorial in the shape of a cross in a Maryland suburb of Washington, D.C. The Fourth Circuit Court of Appeals emphasized the Christian origins of the memorial in ruling that it violates the Establishment Clause and must be removed. [American Humanist Association v. Maryland-National Capital Park & Planning Commission] That case is now in the Supreme Court. The third situation involves a cross that has been in a Pensacola city park for 75 years without controversy, up until now. A three-judge panel of the 11th Circuit has ruled that the cross must come down. The city wants the Supreme Court to take the case, arguing that long public acceptance of the cross is enough to make it kosher under previous Supreme Court precedents and, further, that the passage of time before any legal challenge was mounted indicates that just about nobody considers the cross to be an ‘establishment’ of religion. As of this writing, the Supreme Court has not indicated whether it will take the case. From time to time on these webinars, I have criticized the Supreme Court for deviating from the Founders’ design. When the Supreme Court stopped requiring active measures imposing a state religion to make out violations of the Establishment Clause, and veered off into deciding whether passive religious displays endorse religion, it opened the door to an endless stream of cases where it would have to decide on fine shadings of fact what is and what is not an ‘endorsement’. How many reindeer are enough? None of this would be necessary if the Supreme Court had stuck to the original meaning of the word ‘establishment’ in the first place. But that’s just me. Like I said, this issue isn’t going away. See you same time, a year from now. Conservative groups win smashing free speech victory over UCal-Berkeley (Constitution news round-up)12/5/2018
1A: Conservative groups win smashing free speech victory over UCal-Berkeley for hamstringing speakers (including Ben Shapiro) – school to pay $70,000, rescind unconstitutional and discriminatory policies
https://www.washingtonexaminer.com/red-alert-politics/uc-berkeley-settles-landmark-free-speech-lawsuit-will-pay-70-000-to-conservative-group Free Expression: Gonzaga U – What would Jesus do? Why, ban Ben Shapiro, of course! Catholic school caves to heckler’s veto, refuses to let Shapiro speak because people might be upset. https://freebeacon.com/politics/gonzaga-university-blocks-ben-shapiro-event-protesters-might-use-hate-speech/?utm_source=Freedom+Mail&utm_campaign=90c6b95ec0-EMAIL_CAMPAIGN_2018_03_19_COPY_01&utm_medium=email&utm_term=0_b5e6e0e9ea-90c6b95ec0-45628225 1A: Supreme Court extends Janus principles to bar dues; attorneys can’t be compelled to pay for bar associations’ political speech https://freebeacon.com/issues/scotus-rules-favor-free-speech-lawyer-lawsuit/?utm_source=Freedom+Mail&utm_campaign=11d13d87dc-EMAIL_CAMPAIGN_2018_12_03_10_17_COPY_02&utm_medium=email&utm_term=0_b5e6e0e9ea-11d13d87dc-45628225 1A: Law of compelled speech is complicated and unsettled – wedding cakes, union dues, abortion info at pregnancy centers, transgender pronouns (panel discussion) https://www.youtube.com/watch?v=eAD6prcG60Y 1A: NFL season ticket holder – I have a right as a member of a captive audience to be protected from unwanted ‘take a knee’ protests. Louisiana appeals court – not a valid cause of action http://reason.com/volokh/2018/12/03/court-throws-out-season-ticket-holders-l Free Expression: Google employees discussed manipulating search results, burying conservative media to swing 2020 elections. Please All-Knowing Google, teach me critical thinking. What a bunch of airheads! https://dailycaller.com/2018/11/29/google-censorship-conservative-media/ 2A: New York bill would require gun purchasers to submit their social media and online search history https://www.foxnews.com/us/gun-purchasers-may-need-to-submit-social-media-history-under-proposed-new-york-legislation 2A: Maryland ‘red flag’ law draws 114 gun removal requests in its first month https://wtop.com/maryland/2018/11/maryland-law-draws-114-gun-removal-requests-in-its-1st-month/ South Africa gun registration law predictably cascades into gun confiscation law. Gun grabbers want ALL your freedom. Don’t give them ANY of it. https://www.alloutdoor.com/2018/07/24/south-africa-lesson-registering-guns/ 4A: Officer – I knew it was wrong to place a GPS tracker on defendant’s car without a warrant, but I did it anyway. 4th Circuit – flagrant violation of the 4th Amendment justifying exclusion of drug evidence http://reason.com/volokh/2018/12/04/warrantless-placing-of-a-gps-device-and 4A: Wisconsin Supreme Court upholds use of GPS tracker on suspect’s car after warrant expired https://www.jsonline.com/story/news/politics/2018/11/19/wisconsin-supreme-court-upholds-police-use-gps-tracker/2024023002/ 14A Due Process: ACLU says ‘Marsy’ victims’ rights laws offend the presumption of innocence and the right of the accused to secure exculpatory evidence https://www.aclu.org/blog/criminal-law-reform/major-threat-due-process-marsys-law-gains-ground-nationwide 14A Due Process: Rhode Island students sue state for denying right to be taught civics (how to become capable jurors, voters, and citizens) https://www.cnn.com/2018/12/01/us/civics-class-action-lawsuit-rhode-island/index.html 5A: Supreme Court hears arguments in case testing whether separate state and federal prosecutions for same offense constitutes double jeopardy http://reason.com/volokh/2018/12/05/dual-sovereign-doctrine-under-attack-in 5A Eminent Domain: Texas appeals court rules deliberate hurricane-related flooding of certain properties to prevent damage to other properties can be a taking requiring compensation http://reason.com/volokh/2018/12/04/texas-court-rules-deliberate-flooding-of 6A: New York high court rules possible deportation is a serious consequence triggering right to a jury trial https://www.washingtonpost.com/politics/2018/11/30/deportation-may-be-worse-than-jail-court-just-ruled-why-thats-big-deal/?utm_term=.38f96578a213 8A: Supreme Court appears ready to rule that excessive fines clause applies to the states; this would rein in civil asset forfeiture racket https://www.theusconstitution.org/news/high-court-set-to-apply-constitutions-ban-on-excessive-fines-to-states-report/ 10A: Supreme Court could pronounce in excessive fines case that all of the Bill of Rights are ‘incorporated’ and thus apply to the states; this would be disruptive (e.g., grand juries) and damage already weak federalism https://news.bloomberglaw.com/us-law-week/broader-bill-of-rights-would-dramatically-impact-state-courts Political Bias in Public Accommodations: Republican Club sues Pasadena for canceling event in rented hall featuring pro-marriage speaker https://www.claremont.org/page/ccj-files-lawsuit-challenging-political-and-religious-discrimination/ Economic Freedom: after Wisconsin law banning sale of home-baked goods, home bakers are better able to pay their bills, buy lessons for their children, and get health insurance. https://ij.org/report/ready-to-roll/ Patents: elderly inventor sues Patent Office for bad faith discrimination, blocking his applications, violating his constitutional property rights https://freebeacon.com/issues/patently-offensive/?utm_source=Freedom+Mail&utm_campaign=94987192e3-EMAIL_CAMPAIGN_2018_11_30_08_04_COPY_01&utm_medium=email&utm_term=0_b5e6e0e9ea-94987192e3-45628225 Shame and Kudos! Stanford administrator encouraged frat house to take down American flag as offensive to others. Frat responds by hoisting bigger flag. Mr. Administrator, show me your alternative flag. I’m waiting. https://stanfordreview.org/does-the-american-flag-offend-you-stanford-thinks-it-might/?fbclid=IwAR2nZT9784lMrueJkkoYUS1bnkjmRWrUy7xefgrB6hquEIYbfu9BlFF3rHE A federal judge has thrown out the federal female genital mutilation statute and dismissed the key charges in the Detroit FGM case.
I first told you about this case last year. At that time, the Muslims charged in the case were raising a religious liberty defense, arguing that they had acted within their constitutional rights on the facts presented. But the focus changed to the Commerce Clause and the judge ruled that FGM is a local criminal activity within the purview of local authorities and beyond the reach of Congress to regulate. The Commerce Clause is in Article 1, Section 8 of the U.S. Constitution. It’s what gives Congress the power to regulate commerce among the several states. You may recall that Chief Justice John Roberts found that Obamacare violated the Commerce Clause before doing judicial backflips and upheld it as a tax. The Detroit case was the first prosecution under the 22 year-old federal FGM statute. Prosecutors claimed that as many as 100 girls from Michigan, Illinois, and Minnesota had been cut. The defendants argued that FGM has nothing to do with commerce, that “mutilation is not an economic activity.” The government argued that children were transported across state lines and that the procedures were arranged with the use of cellphones, and involved medical tools and drugs sold in interstate commerce. They further argued that a healthcare service is a commercial service. The judge knocked down the FGM statute as unconstitutional and dismissed most of the charges against the two Michigan doctors. In his opinion, the judge wrote that FGM may be a “despicable” practice, but it’s up to the states to regulate it. He recounted a long history of cases saying the federal government can’t touch purely local crimes. He said there was nothing commercial about FGM. It’s just an assault and, like rape, has no effect on interstate commerce. He relied on a precedent knocking down part of the Violence Against Women Act on the grounds that sexual assault has no effect on interstate commerce. He pointed out that, in the Detroit case, there was “no suggestion the procedure was done for money.” If there was evidence in the record that money changed hands, it was not reported in the stories I read. The U.S. Attorney’s office hasn’t decided yet whether or not to appeal. Serious conspiracy and obstruction charges remain and are set for trial in August 2019, although there is now a motion to dismiss a conspiracy charge. There is a state FGM statute in Michigan, but the defendants in the Detroit case can’t be charged under it because it was passed after the federal case arose. You can’t charge people retroactively; that would be an ex post facto prosecution and unconstitutional under Due Process and Article 1, Section 9 of the U.S. Constitution. You might recall a Commerce Clause case from the New Deal era, Wickard v. Filburn. The wheat in that case was consumed locally on the farm where it was grown and never crossed state lines. But the price stabilization statute was upheld because the farmer’s actions were deemed to have an effect on wheat prices elsewhere, so there was an effect on interstate commerce. We have, in the Detroit case, people who did cross state lines, but the statute was knocked down. If this doesn’t make any sense to you, welcome to the wacky world of constitutional jurisprudence. There were other problems with the judge’s opinion. There is a distinction in the law between a facial challenge to a statute and a challenge to the statute as it is applied in a particular case. A successful facial challenge means there is no set of facts imaginable under which a law could be constitutional. A successful ‘as applied’ challenge means that the law is unconstitutional on the facts presented, but there might be other facts where application of the law would be constitutional. In the Detroit case, the judge said that FGM is not an economic activity or healthcare service. But what about potential cases in the 23 states that don’t have their own FGM statute making such cutting illegal and there is evidence in the record that money changed hands? Under those facts, there would be no local crime and the commercial nature of people crossing state lines to consume a healthcare service would be undeniable. Voilà! – the effect on interstate commerce the judge said was lacking in the Detroit case justifying Congressional regulation and the federal statute. The judge did not limit his ruling to the way the statute was applied. Instead, this judge went out of his way to knock down the entire federal statute as unconstitutional on its face when there are circumstances under which it could be constitutionally applied under the judge’s own reasoning. The judge’s opinion does not hang together, logically speaking. An appeal could go either way but, for now, the ruling only applies in the District where the judge sits. He did not issue a nationwide injunction, as is the fashion these days. It will probably be a long time before the issue reaches the Supreme Court and is decided there. The Supreme Court often waits for a conflict between Circuits or other courts of appeal. But there is a code of silence regarding FGM in Muslim communities, so there are few potential complainants and, consequently, few prosecutions will be brought around the country, if any are brought at all. These would have to work their way up through the appeals process and produce divergent results before the Supreme Court would get interested, if the common pattern holds. Be that as it may, pressure will have to be brought on state and federal prosecutors to do their jobs and bring cases, or one tentacle of sharia law will have effectively extended its reach over America. I discussed the Detroit case in greater detail on Sharia Crime Stoppers radio and you can find the archive here. Commerce Clause: Muslim female genital mutilation is local criminal activity beyond the reach of Congress to regulate, judge says in expansive ruling knocking down federal FGM statute
https://www.freep.com/story/news/local/michigan/detroit/2018/11/20/female-genital-mutilation-michigan/1991712002/ Appointments Clause: Supreme Court is asked to rule whether acting Attorney General appointment is lawful https://www.reuters.com/article/us-usa-trump-whitaker/trumps-attorney-general-appointment-challenged-at-supreme-court-idUSKCN1NL2KV 5A Due Process: federal judge issues temporary order blocking implementation of Trump asylum rules steering asylum claimants to ports of entry https://theconservativetreehouse.com/2018/11/20/san-francisco-judge-blocks-asylum-ban-for-aliens-who-cross-border-illegally/ 5A Fundamental Rights: After Supreme Court rebuke, trial judge puts Climate Kid’s lawsuit on hold to allow government to appeal to 9th Circuit http://reason.com/volokh/2018/11/26/is-kids-climate-case-coming-to-an-end Discrimination: Trump administration asks Supreme Court for expedited review of its new policy excluding most transgender people from military service; policy currently blocked by 3 lower court orders https://constitutioncenter.org/blog/transgender-in-the-military-dispute-reaches-supreme-court 5A Due Process: in America, we have the right to cross-examine witnesses, confront our accusers in court, and the presumption of innocence. New campus sexual assault rules should not be controversial. https://www.dailywire.com/news/38453/insane-aclu-now-opposes-accused-students-having-so-ben-shapiro 14A Fundamental Rights: 19 states ask Supreme Court to overturn appeals court, uphold Indiana’s ban on Down Syndrome abortion https://townhall.com/tipsheet/laurettabrown/2018/11/20/19-states-ask-the-supreme-court-to-uphold-indianas-down-syndrome-abortion-ban-n2536269 1A: Baby parts sting video maker asks Supreme Court to terminate Planned Parenthood’s intimidation lawsuit designed to stifle First Amendment rights (SLAPP suit) https://www.lifenews.com/2018/11/28/planned-parenthood-desperately-tries-to-stop-more-videos-exposing-it-selling-aborted-baby-parts/ 10A Commandeering: Oregon sues Trump administration for withholding federal grants for state’s refusal to cooperate on immigration matters https://www.thegatewaypundit.com/2018/11/oregon-ag-sues-trump-over-sanctuary-state-funding-oregons-18th-lawsuit-costing-over-100000/ Art 1, Sec 2: Defeated Congressman challenges Maine’s ranked-choice voting law https://www.pressherald.com/2018/11/13/opinion-poliquins-suit-unlikely-to-prevail-on-constitutional-grounds/ 2A: NRA sues Washington State after gun control referendum passes banning sale of semi-autos under age 21, requiring handgun purchasers to allow searches of their medical records, etc. https://freebeacon.com/issues/nra-saf-file-suit-block-new-washington-gun-control-law/?utm_source=Freedom+Mail&utm_campaign=b2035b2b5d-EMAIL_CAMPAIGN_2018_11_19_02_14_COPY_123&utm_medium=email&utm_term=0_b5e6e0e9ea-b2035b2b5d-45628225 2A: courts uphold Colorado’s large-capacity magazine ban (again) https://www.skyhinews.com/news/in-setback-to-gun-advocates-colorados-large-capacity-magazine-ban-survived-yet-another-court-challenge/ State Constitution: Kentucky Supreme Court upholds state’s right-to-work law https://freebeacon.com/issues/right-work-wins-kentucky/?utm_source=Freedom+Mail&utm_campaign=b2035b2b5d-EMAIL_CAMPAIGN_2018_11_19_02_14_COPY_123&utm_medium=email&utm_term=0_b5e6e0e9ea-b2035b2b5d-45628225 Shame! St. Louis County’s Parkway School District fires teacher for thanking students for standing and reciting the Pledge of Allegiance https://www.thegatewaypundit.com/2018/11/st-louis-teacher-fired-after-thanking-kids-for-standing-during-pledge-of-allegiance/ Shame on Brooklyn federal district court judge LaShann DeArcy! She demoralized new Americans in citizenship ceremony by telling them to ‘take a knee’. They freely chose America. You couldn’t be any more disrespectful of their choice. https://spectator.org/judge-tells-new-citizens-to-take-a-knee/ At first glance, it seems outlandish that a federal judge would order President Trump to return Jim Acosta’s press pass. Surely, there can’t be a constitutional right to attend White House press conferences, can there? But the judge’s order becomes much more understandable when you dig into it a little.
No opinion, order, or transcript is publicly available at this time [1:18-cv-02610-TJK CABLE NEWS NETWORK, INC. et al v. TRUMP et al, U.S. District Court for the District of Columbia], so we start, as always, with the text of the U.S. Constitution. The First Amendment protects, among other things, freedom of the press. The Fifth Amendment provides that no one shall be deprived of life, liberty, or property without due process of law. The heart of the matter is that Jim Acosta of CNN, once granted a White House press pass, has a liberty interest in that pass that is protected by due process. He cannot be deprived of his pass without first being afforded due process of law. This is the basis of the judge’s order. Due process, among other things, means notice and an opportunity to be heard. The White House pulled Jim Acosta’s press pass without giving him notice or an opportunity to be heard before the revocation. The judge recited these facts, as well as the fact that the government’s lawyer could not say who actually ordered the revocation, making the process indeterminable. The judge relied on a 1977 federal appeals court decision involving Robert Sherrill of The Nation magazine. Sherrill was denied access to the White House, the Secret Service said, because he had a couple of assaults in his background – one while on the job. He had punched the Florida Governor’s press secretary while on a campaign train. What a rude, terrible person but, still, the court in that case upheld his First and Fifth Amendment rights. The court concluded “that notice, opportunity to rebut, and a written decision are required because the denial of a pass potentially infringes upon First Amendment guarantees.” Judge Timothy Kelly, a Trump appointee, said, while he may not agree with the 1977 precedent, he felt duty-bound to follow it in Jim Acosta’s case. A couple of other factors weighed in the judge’s decision. Judge Kelly found that CNN would likely prevail on the merits. He also expressed his skepticism about White House claims that it had pulled the pass due to Acosta’s bad behavior at a recent press conference. CNN argued that the pass was pulled, not because of Acosta’s behavior, but because of his prior reporting that was unfavorable to the President. This raises the possibility that the White House was actually acting against Acosta because of the content of his viewpoint, a big free speech no-no. The judge also rejected the administration’s argument that CNN has plenty of other reporters covering the White House. As the judge put it, "That CNN may send another journalist to the White House does not make the harm to Mr. Acosta any less irreparable." After the judge’s ruling, the White House indicated it would draw up some rules regarding decorum at White House press briefings. The judge’s ruling was on CNN’s application for a temporary restraining order and the White House has not indicated whether it wants to continue with the litigation. The judge left open the possibility that the White House could still revoke Jim Acosta’s pass if it first affords him due process. The judge also seemed to suggest that President Trump would be within his rights never to call on Jim Acosta again. For the life of me, I can’t understand why the White House continues to hold press conferences for the hostile fake news media. Why not just send everybody press releases and maybe answer some questions by email? If due process vests because the government creates a forum, then why not do away with the forum? Separation of Powers: 9th Circuit upholds national injunction against Trump administration effort to end DACA program; Supreme Court expected to take up DACA issue
https://constitutioncenter.org/blog/ninth-circuit-rules-against-trump-administration-on-daca 5A Due Process: Trump administration suspends asylum claims not made at ports of entry https://www.whitehouse.gov/presidential-actions/presidential-proclamation-addressing-mass-migration-southern-border-united-states/ Appointments Clause: Supreme Court said in 1898 Eaton case that temporary appointment does not transform individual into a principal officer requiring Congressional approval (Acting AG controversy) http://reason.com/volokh/2018/11/10/who-is-lawfully-the-attorney-general-rig 1A Free Press: Jim Acosta and CNN assert constitutional right to a White House press pass in suit against Trump; Acosta can still apply for daily pass https://www.thegatewaypundit.com/2018/11/jim-acosta-and-cnn-sue-white-house-for-banning-abusive-jackass-from-from-constitutional-right-to-harass-president/ Voting Rights: federal judges throw out Maryland electoral map as political gerrymandering hurting GOP; sets deadline for new map or creation of commission https://www.washingtonpost.com/local/public-safety/federal-judges-throw-out-marylands-congressional-voting-map/2018/11/07/91a06834-e2be-11e8-b759-3d88a5ce9e19_story.html?utm_term=.a233fad646c4 Free Expression: European Parliament moves to ban ‘hate’ speech across entire EU, calls for special police to prosecute and jail critics of radical Islam, gay agenda, open borders, transgenderism, etc. https://www.thenewamerican.com/world-news/europe/item/30600-eu-resolution-demands-critics-of-lgbt-and-islam-be-prosecuted 1A: federal judge rules Wisconsin high school’s ban on pro-gun T-shirts likely unconstitutional http://reason.com/volokh/2018/11/12/high-school-has-right-to-wear-pro-gun-t 2A: 1st Circuit aligns with California on eviscerating right to carry guns outside the home http://patriotgunnews.com/2018/11/06/first-circuit-court-of-appeals-rule-no-right-to-bear-arms-outside-the-home/ 2A: lawsuit challenges New Jersey’s ban on distribution of 3-D gun printing instructions http://reason.com/volokh/2018/11/09/lawsuit-challenging-new-jersey-ban-on-di 2A: “98% of the mass public shootings in the United States since 1950 have occurred in places where guns are banned” https://crimeresearch.org/2018/11/massacre-at-borderline-bar-grill-in-thousand-oaks-california-was-in-another-gun-free-zone-12-murdered-18-injured/ 2A: Washington State voters approve age restrictions, other curbs on gun purchases https://www.dailysignal.com/2018/11/07/washington-voters-ok-sweeping-gun-control-measure-raising-age-for-some-purchases/?utm_source=TDS_Email&utm_medium=email&utm_campaign=CapitolBell%22&mkt_tok=eyJpIjoiTVdVMk9URm1ZMlZsT0RaaiIsInQiOiJ0K0lqODdYVVlhUDJ6YnJkaU0zR2phUXFVNitZU2R3OGNKTkFnajdHWFh5Q0FxV3hrRmtaTDVpTGYzOW5sWlUxa1wvOTc4UkVkeWM2azN1c2d2RUllSjhHVTVVZ2R4MjI1XC9rZ2VkVEJQZEZicm5NUjk0MWhjTFVvMk5aZ3hacVFcLyJ9 2A: fantastical bogus statistic going around after Thousand Oaks shooting – ‘307 mass shootings this year alone.’ Sure. Debunked by left-wing Washington Post https://www.newsbusters.org/blogs/nb/nicholas-fondacaro/2018/11/08/here-we-go-again-cbs-nbc-push-another-bogus-mass-shooting 8A: Supreme Court is asked to rule on Arizona provision categorically denying bail to persons accused of violent sexual offenses http://reason.com/volokh/2018/11/13/are-categorical-denials-of-bail-constitu State Constitutions: New Hampshire (‘Live Free or Die’ state) amends constitution to protect “right to live free from governmental intrusion in private or personal information" – whatever that means http://reason.com/volokh/2018/11/12/nh-constitution-now-protects-right-to-li President Trump caused quite a stir late last month when he announced his intent to sign an executive order ending birthright citizenship for U.S.-born children of noncitizens. Both sides of this debate cite legislative history and Supreme Court cases in support of their positions. Tonight, I’ll try to cut through the fog and lay out the issues clearly for you.
We start with the pertinent words of the 14th Amendment: “All persons born ... in the United States, and subject to the jurisdiction thereof, are citizens of the United States....” The immediate purpose of this provision was to reverse Dred Scott and make it clear that freed slaves and their children were in fact U.S. citizens. But what do the words “subject to the jurisdiction thereof” mean? Proponents of birthright citizenship for the children of illegal aliens say it simply means that a person is legally required to obey U.S. laws and can be punished if they break those laws. This seems to me to read “subject to the jurisdiction thereof” right out of the Constitution. Of course anyone, except maybe diplomats, can be given a speeding ticket. I don’t see how that should confer citizenship. It seems to me that the critics of birthright citizenship have the better argument – that “subject to the jurisdiction thereof” means that the person owes their political allegiance to the United States. Diplomats, as well as students and others here on temporary visas, do not owe their political allegiance to the United States. If they happen to give birth while here, their children do not owe political allegiance to the United States, either, and thus are not ‘subject to the jurisdiction of the United States’ as those words are arguably properly read. It is not controversial that diplomats’ children born in the United States are not citizens of this country. Proponents of birthright citizenship point to statements made during the congressional debates on the 14th Amendment by Pennsylvania Senator Edgar Cowan who opposed the Amendment because, as he understood it, the amendment would give U.S.-born children of Chinese laborers and other noncitizens citizenship even though they did not owe allegiance to the United States. On the other hand, Senator Lyman Trumbull of Illinois expressly said that ‘subject to the jurisdiction of the United States’ included not owing political allegiance to another country. No wonder Justice Clarence Thomas doesn’t like legislative history and says cases should be decided by what is enacted rather than by what is intended. This brings us to the dueling Supreme Court cases, none of which really decide the issue. This is because the issue of birthright citizenship for U.S.-born children of aliens not legally resident in the United States has never been squarely presented or squarely decided by the Supreme Court. All the cases involve some other fact pattern making the loose statements about birthright citizenship in those cases what lawyers call dicta – extraneous verbiage that does not have the force of law. Proponents of birthright citizenship point to United States v. Wong Kim Ark, an 1898 case which made broad statements about “birth within the territory” but only decided that the children of lawfully resident immigrants are U.S. citizens. Proponents also cite Plyler v. Doe from 1982 which gave the children of illegal aliens the right to a public education, but the Court did this because the Equal Protection Clause of the 14th Amendment applies to all ‘persons’ in the U.S., not just citizens. On the other side of the ledger, critics of birthright citizenship cite the 1873 Slaughter-house Cases in which the Court wrote that “[t]he phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of … citizens or subjects of foreign States born within the United States.” In 1884, the Supreme Court in Elk v. Wilkins denied the birthright citizenship of American Indians, saying being born in the territory of the United States was not enough to confer citizenship and that American Indians were not ‘subject to the jurisdiction of the United States’. This ruling was later changed by statute. There are other cases, but you get the idea. Critics of birthright citizenship say the doctrine was cooked up by the State Department not all that long ago, and that what the executive branch has done can be undone by executive order. President Trump just recently reiterated his intent to sign an order ending birthright citizenship and said the issue would probably end up in the Supreme Court. Estimates vary, but there are at least 4 million children of illegal aliens who have received birthright citizenship. The trend in other Western countries is away from birthright citizenship while, in our country, birth tourism has become an industry, with birthing centers for Russian and Chinese women making headlines. My personal preference would be for Congress to settle the matter by passing a law. Article 1, Section 8 of the U.S. Constitution gives Congress the power to establish a uniform rule of naturalization, to say who and who does not get to be a citizen. Congress should step up to the plate, fulfill its constitutional duty, and settle the issue of birthright citizenship. The last stop in that process would probably be the Supreme Court, but at least the duly elected representatives of the people would have spoken. 5A Due Process: Caravan migrants sue Trump, claim he can’t shut down asylum process (statute arguably says he can)
https://www.foxnews.com/politics/migrants-traveling-to-us-sue-trump-government-claim-violation-of-constitutional-rights?fbclid=IwAR2zBWvVAd13Io5WOuJT6w7fHgBynq9oYZR7maunsHOFzO-YToXX6VJPbGs 5A Fundamental Rights: Supreme Court refuses to stop climate kids case, refers government to 9th Circuit for relief https://www.cbsnews.com/news/supreme-court-declines-to-stop-climate-change-lawsuit-filed-by-young-activists-2018-11-03/ Emoluments: federal judge green-lights emoluments case against Trump, opening door for critics to get his financial records https://www.theguardian.com/us-news/2018/nov/03/trump-emoluments-case-ruling-financial-records-tax-returns 1A Religion: Supreme Court takes 40-foot war memorial cross case https://constitutioncenter.org/blog/supreme-court-takes-bladensburg-peace-cross-case Age Discrimination: Supreme Court unanimously rules age discrimination statute applies to state and local government units, no matter how small https://www.law.com/nationallawjournal/2018/11/06/justices-unanimously-extend-reach-of-federal-age-discrimination-law/?slreturn=20181006123028 14A Fundamental Rights: Anti-abortion amendments pass in Alabama and West Virginia; would criminalize abortions there if Supreme Court overturns Roe and returns autonomy on abortion to the states https://thehill.com/policy/healthcare/415417-alabama-passes-anti-abortion-amendment 2A: free speech claims may go forward against New York for pressuring banks and insurance companies not to deal with the NRA, federal judge rules http://reason.com/volokh/2018/11/06/nras-free-speech-claims-against-ny-offic 1A Compelled Speech: professor sues school that punished him for refusing to use transgender’s pronoun of choice http://www.adfmedia.org/News/PRDetail/10640 1A: federal court denies preliminary injunction against allegedly defamatory political campaign ad http://reason.com/volokh/2018/11/02/no-preliminary-injunction-against-allege 1A: Massachusetts ballot question attempts to overturn Citizens United by establishing commission to propose amendments to cut corporate, union, and non-profit political spending https://turnto10.com/politics/massachusetts-ballot-question-seeks-to-change-us-constitution 2A: Supreme Court again turns away challenge to California’s ban on carrying handguns in public https://www.usnews.com/news/top-news/articles/2018-11-05/us-supreme-court-rebuffs-challenge-to-california-gun-restrictions Equal Protection: “Jewish Trump Supporters Denied Service at NYC Restaurants” (issue of political bias in public accommodations is begging to get litigated) https://news.grabien.com/story-jewish-trump-supporters-denied-service-nyc-restaurants 14A Fundamental Rights: ordering invasive medical exams without parental notice or consent, after removing children from home on suspicion of child abuse, is unconstitutional (9th Circuit) http://cdn.ca9.uscourts.gov/datastore/opinions/2018/10/31/16-56657.pdf Rule of Law: lawlessness begets lawlessness; sanctuary cities beget caravans, violent protests beget wider intimidation, etc. (Victor Davis Hanson) https://www.dailysignal.com/2018/11/02/if-we-dont-enforce-the-law-we-get-anarchy/?utm_source=TDS_Email&utm_medium=email&utm_campaign=Top5?&mkt_tok=eyJpIjoiT1RWaU0ySmhNV001WkdZMiIsInQiOiJta2pxSmk5SGgxNGYwaXdhTityTkFHXC9odjZNR20wbE1zVFo1d3Boblk3K0hKeE1Ja3RId0VndktOVkRYQ0tleklcL2ZRbk5cLzhpU2hYK1pGVHhLWXVmU3hWcjNaVUNDSVAwNzczRG12NkQzdWJ4Zkd1OGxSU1VxRkVGUDlkM0xKMyJ9 Kudos to Missouri store for creating giant sculpture of the U.S. Constitution to educate the public on the importance of having a document that sets our basic ground rules https://www.ozarksfirst.com/news/earth-outdoor-store-creates-giant-metal-sculpture-of-us-constitution/1550606455 ‘Birthright citizenship’ is a creation of executive fiat – NOT the 14th Amendment - and can be reversed by Executive Order https://www.dailysignal.com/2018/10/30/birthright-citizenship-a-fundamental-misunderstanding-of-the-14th-amendment/?mkt_tok=eyJpIjoiTnpJeE56UTBZV0V4WlRoaCIsInQiOiJ5MUNXZDA4MnltSmdxa05pandNa1d6ZjJHXC9VVUkyRUNNNlVLWXlmb2ZJYjBrR2lvZXRWa09KOVpyMEllUHA5dExaaHJsZ0grUktsSjAwQ29aTHE0R21MelZWaXNlOFVYU0RRblB0cU9zNlpsVzlPY0h0b1lzQTNrdFRpMXRRZUgifQ%3D%3D + https://www.foxnews.com/politics/trump-says-he-plans-to-sign-executive-order-ending-birthright-citizenship 1A: federal judge strikes down California law that required pro-life pregnancy centers to give information about abortion; Supreme Court indicated in June law likely unconstitutional https://dailycaller.com/2018/10/28/california-fact-act-abortion/ 1A: Michigan appeals court vacates trial court order enjoining Facebook posts in neighbor spat; inappropriate, crude, and offensive language can be protected under 1A http://reason.com/volokh/2018/10/25/injunction-against-harassing-online-spee 1A: unions flouting Supreme Court Janus decision; requiring workers to opt out of forced dues, restricting opt-out periods, refusing to issue refunds, still representing workers who disagree with them https://fedsoc.org/events/update-workers-speech-rights-in-the-wake-of-janus 1A: Colorado Supreme Court goes against the grain in denying presumptive right of access to sealed criminal court records http://reason.com/volokh/2018/10/25/does-the-first-amendment-protect-a-presu Free Expression: don’t you dare call Muhammad’s practice of child marriage ‘pedophilia’ because that would be blasphemy and you would be a criminal, European Court of Human Rights rules http://reason.com/volokh/2018/10/26/european-court-ok-to-criminalize-calling 2A: evidence for current wave of gun control laws is weak; universal background checks don’t reduce crime and safe storage laws don’t reduce accidents https://townhall.com/columnists/johnrlottjr/2018/07/23/weak-evidence-for-new-gun-control-laws-n2502786 4A: police can’t detain people while developing ‘hunches’ about where to search http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D10-18/C:17-2517:J:Hamilton:aut:T:fnOp:N:2236435:S:0 Eminent Domain: property rights activists disappointed Supreme Court turned away opportunity to limit Kelo; OK for Louisiana port authority to seize nearby competing private port https://fedsoc.org/commentary/blog-posts/news-scotus-passes-on-opportunity-to-limit-or-overturn-kelo 10A: Supreme Court soon to hear oral arguments in case where Virginia admitted its uranium mining ban is motivated by radiological safety concerns, an exclusive province of the federal government https://www.dailysignal.com/2018/10/29/here-are-3-cases-to-watch-at-the-supreme-court/?utm_source=TDS_Email&utm_medium=email&utm_campaign=CapitolBell&mkt_tok=eyJpIjoiTkRnMlptUXpOakZtTVROaSIsInQiOiJ6cGFFcnlPV3dWN3hzM1ZmeklaeVZ3K1BzTHFxc2VLa1ZOSjRXdlAzNEN4OWhDU1d0UndydXlidWxWa042QzY1SXY1cEV1TUswK2hrTjBZQ3hSaHc1VXVBbDA5OU4xeWFjMXNacHRqWUpUV3h2emtqaUxneWZKckxtb0NLSW9yNCJ9 10A: Trump-hating Dems discover the virtues of federalism https://www.conservativereview.com/news/shapiro-how-democrats-learned-to-stop-worrying-and-love-federalism/ 14A: class action against Tennessee revoking driver’s licenses for failure to pay criminal fines will proceed in part; long discussion of how 14A standards change when both equal protection and due process involved https://cdn.buttercms.com/rM4VcPDRTWZBxgR2OkEj Economic Freedom: why does a barber need a high school diploma and 1,500 hours of training? Tennessee law being challenged. https://fedsoc.org/commentary/blog-posts/docket-watch-zarate-v-tennessee-of-cosmetology-and-barber-examiners Trump has inherent executive authority and delegated authority from Congress to stop illegal alien caravan from entering U.S.
https://www.conservativereview.com/news/president-trump-has-full-constitutional-power-to-stop-the-border-invasion-even-without-congress/ 14A Due Process: Alabama Supreme Court affirms sentence for murder of unborn child, criticizes Roe v. Wade as patently illogical https://www.wnd.com/2018/10/shocker-court-rules-unborn-baby-a-person/ 1A: Supreme Court takes case with implications for social media; case tests whether a public access television network run by private operator is a free speech forum https://www.cnbc.com/2018/10/16/supreme-court-case-could-decide-fb-twitter-power-to-regulate-speech.html Nationwide Injunctions: 9th Circuit panel appears skeptical of nationwide injunction barring Trump administration from issuing rules creating exceptions to Obamacare’s birth control mandate http://www.latimes.com/local/lanow/la-me-ln-birth-control-9th-circuit-20181019-story.html 1A: Oregon baker asks Supreme Court to resolve compelled speech question left over from Masterpiece https://www.dailysignal.com/2018/10/22/bakers-fined-135k-over-wedding-cake-appeal-to-supreme-court/?utm_source=TDS_Email&utm_medium=email&utm_campaign=MorningBell%22&mkt_tok=eyJpIjoiWkRVMVlUQTBNRFEwTldWaiIsInQiOiJNYlwvQVBjQmlFd3VzSTU3ZVN6Tk83YVlcL29OU1ZxRTZkYnJMdUtzMHZYSlJWU01zbUJoQjlUQ0ZaamwyZlhpRFJYalMxZ0VoRVZoMHhHYVA3cUpqakdjRDdKK2xhTmY3Q3o0dFNhYjJzb05KUGo5eVwvMHVNVWVrNzAzZnlUWVwvVDcifQ%3D%3D 1A: Christian filmmakers argue before 8th Circuit that state’s order to ‘cover gay weddings or go to jail’ unconstitutionally compels speech in violation of beliefs http://www1.cbn.com/cbnnews/us/2018/october/christian-filmmakers-appeal-to-8th-circuit-to-make-films-celebrating-marriage-between-one-man-one-woman 1A Religion: 7th Circuit finds no assault on religion in school district’s decision not to provide second Catholic school with busing. http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D10-11/C:17-2333:J:Ripple:dis:T:fnOp:N:2232584:S:0 2A: When do ammunition taxes, microstamping requirements, and ammo limits excessively burden the right to bear arms? https://thefederalist.com/2018/10/15/left-doesnt-just-want-take-guns-also-ammo/ 5A,6A: new conditions in written sentence handed down after sentencing hearing violate opportunity to be heard and right to be present at sentencing (5th Circuit) http://www.ca5.uscourts.gov/opinions/pub/17/17-40033-CR0.pdf 14A Equal Protection: separate opinion blasts ‘tawdry and disreputable’ police tactic of stash house reverse stings, as race-based targeting http://cdn.ca9.uscourts.gov/datastore/opinions/2018/10/15/16-50061.pdf#page=17 14A political bias in public accommodations: Ruby Tuesday restaurant in North Carolina denies service for Trump t-shirt; dollars went to Texas Roadhouse, instead https://www.thegatewaypundit.com/2018/10/family-denied-service-at-ruby-tuesday-in-roanoke-rapids-north-carolina-over-pro-trump-t-shirt-video/?fbclid=IwAR0b98qGaMVhL8vnTew_lZBFOjErAmB9RpqaQjbXJXcvAvjMCA2zOZzR7ac 14A Property rights – Ohio owner wants homeless tent city on his property, city says it’s a zoning violation, neighboring apartment dwellers cite nuisance spilling over to them. Who should win? https://www.nytimes.com/2018/10/16/us/akron-homeless-tent-city.html 14A Liberty Interest: Georgia judge writes in favor of a constitutional right to home-school (legal in most states, but by statute). What part of ‘children are not state property’ do you not understand? http://reason.com/volokh/2018/10/23/constitutional-right-to-home-school Commerce Clause: Maryland asks Supreme Court to uphold its generic drug price-gouging law which 4th Circuit knocked down as attempt to regulate transactions beyond state borders http://www.baltimoresun.com/news/maryland/politics/bs-md-frosh-drugs-20181019-story.html Economic Freedom: proposal from Louisville council members appears to renege on city’s agreement with food truck vendors reached in June https://www.courier-journal.com/story/money/louisville-city-living/2018/10/11/louisville-food-trucks-new-vending-zones/1600022002/ New book says America’s problems are not attributed to the U.S. Constitution which has performed well and shown remarkable staying power https://www.the-american-interest.com/2018/10/22/the-sprightly-230-year-old/ Shame! Paul Krugman claims without a shred of evidence Trump will disregard the Constitution after the election, urges government officials to disregard Presidential orders. Go back to economics! #StickToYourKnitting https://www.yahoo.com/news/paul-krugman-warns-trump-poised-065936913.html |