Gregory Watson only got a C on his college paper arguing that a 200-year-old amendment was still alive and could be ratified. But he didn’t give up. He started writing lawmakers and, ten years later, the 27th Amendment became the law of the land:
This story shows that every person in America has the power to bring about Constitutional change. Gregory Watson didn’t think the amendment process was ‘too hard’, and he was right.
The best part: his old professor later changed his grade to an A+! KUOW-FM Seattle
The Commerce Clause in Article I, Section 8 was the first language in the Constitution to be used to grow the power of the federal government. Increasingly aggressive use of the Commerce Clause led to the Supreme Court upholding federal control over farm production and prices in the notorious Wickard v. Filburn case in 1942 and the federal government’s outlawing of racial discrimination in public accommodations in the Heart of Atlanta Motel case in 1964.
But the Due Process clauses of the 5th and 14th Amendments to the Constitution have more recently been used to grow Washington’s reach. A new law review article traces the history of a Supreme Court doctrine called “substantive due process” from the 1870s forward. You could be forgiven for thinking that ‘due process of law’ has something to do with process or procedure, things like proper notice and opportunity to be heard. And it does, in matters of ‘procedural due process’, but due process has also come to mean protections for fundamental rights, such as free speech and the other rights enumerated in the first eight amendments to the Constitution.
Enumerated rights are unarguable. The mischief comes when substantive due process extends to unenumerated rights and is used to create new rights, such as the rights to abortion and same-sex marriage. You won’t find these in the Constitution. The Supreme Court divined them out of ‘penumbras and emanations’ of other clauses. In other words, the Supreme Court is using substantive due process to make up rights out of thin air.
Before you condemn substantive due process entirely, understand that it was once tethered to natural law, some argue, and used, for example, to knock down state laws limiting work hours as a violation of the natural right of contract in what’s known as the Lochner era. There are no substantive rights of contract or property expressly mentioned in the Constitution, but they were considered features of natural law and worthy of protection under due process, at least in the Lochner era. Substantive due process has also been used to protect homeschooling (Pierce v. Society of Sisters), interracial marriage (Loving v. Virginia), and the rights of the mentally ill not to be confined if they are capable of surviving safely in freedom (O'Connor v. Donaldson). Most people would agree these are fundamental rights, even if they are not expressly mentioned in the Constitution.
But, now there is no limiting principle like natural law to rein in substantive due process, with the consequence that due process has become the ultimate constitutional kitchen sink. It is being misused by nine unelected individuals – or five who constitute a majority or, in some cases, a single swing-vote like Anthony Kennedy – calling themselves a Supreme Court to dictate social policy from above and to force their subjective notions of desirable social engineering on the rest of us, regardless of what the people might want or have actually expressed through referendum. Shouldn’t wrenching social change be handled some other way in a Constitutional Republic where the people are supposed to be sovereign? I think so, but more on that at a later date.
The History of “Substantive” Due Process: It’s Complicated, by David E. Bernstein
Substantive due process
Tea Party Youth congratulates Charlie Kirk’s Turning Point USA on persevering and prevailing in its fights to establish a presence on several campuses around the country. The group now has 350 chapters after winning lawsuits and other tussles to organize and spread its message at Creighton University, Santa Clara University, Grand Valley State, and Hagerstown Community College. These are great victories for Tea Party values – limited government, free markets, and fiscal responsibility – to which Turning Point USA also subscribes. Kudos and hats off! Details here.
March 5, 2017
It’s really funny to see the resisters trot out the Constitution when they’ve studiously ignored it the last eight years. Last week, I told you how they want to impeach Donald Trump for high Crimes and Misdemeanors under the Constitution. If you thought that was far-fetched, get a load of how they want him removed under Section 4 of the 25th Amendment for being unfit for office.
The 25th Amendment deals primarily with presidential succession under unusual circumstances. It passed through Congress in 1965 and was ratified in the states two years later. The 25th Amendment has provided plot-lines for a number of books and movies over the years, including the TV series ‘24’ and a movie entitled ‘The President’s Plane is Missing’.
George W. Bush used Section 3 of the Amendment to temporarily transfer power to Dick Cheney during two medical operations. Interestingly, Ronald Reagan did not use Section 3 after the assassination attempt, and there was some criticism about that.
Section 4 of the Amendment allows the Vice President and a majority of the cabinet to declare to Congress that the President is unable to discharge the powers and duties of the office. If the President contests the declaration, the President stays in office unless the declarers dispute the matter further. In that event, the issue gets decided by Congress, where it takes a two-thirds majority vote of both Houses to remove the President. If the President is voted out, the Vice-President takes over as Acting President.
Resisters are on social media saying President Trump is a mental case and should be removed under Section 4 of the 25th Amendment. There have been some articles to the same effect. Incidentally, but coming from the same impulse, somebody in Congress wants to introduce a bill requiring a psychiatrist to be at the White House all the time. All of this far-fetched because Mike Pence is never going to invoke the 25th Amendment against Trump, the cabinet is never going to agree to go along with it, and two-thirds in Congress are never going to vote Trump out. Why? Because the resisters are light-years away from being able to show that Trump is unable to discharge his duties as President.
Like I said, pretty funny to watch the resisters cite the Constitution on a whim and quote the Declaration of Independence that it’s the right of the people to change the government. Did they care about our founding documents when they were ramming Obamacare down our throats? To quote a certain former Speaker of the House when she was violating her oath and dismissing the Constitution out of hand – “Are you kidding? Are you kidding?”
Wikipedia page on the 25th Amendment -
United States presidential line of succession in fiction –
TV series ‘24’ -
Articles calling for Trump’s removal under the 25th Amendment:
“Millennials who are pursuing careers in public relations do not feel prepared to offer advice on ethics to their companies,” the Baylor University School of Media Communications wrote recently. “If Millennials don’t feel equipped, they may be misled by their superiors or used as instruments of unethical behavior.”
How will you prepare yourself and will you be ready when you get there?
ith all the talk about impeaching Donald Trump, I decided to take a look at what presidents can be impeached for. Article 2, Section 4 of the U.S. Constitution specifies presidents can only be impeached for “Treason, Bribery, or other high Crimes and Misdemeanors.” Treason and bribery are pretty self-evident. There was a lot of concern expressed during the framing of the Constitution about a president who might commit the nation to a bad treaty or betray the country if in the pay of a foreign power. There was also discussion of a president trying to buy votes in the Electoral College or otherwise obtain office by corrupt means.
But “high Crimes and Misdemeanors”, what does that mean? It may surprise you to learn that it does not have to be an actual crime. It can be an abuse of power, a breach of trust, or neglect of duty. That would seem to cover a president who just decided not to show up for work for six months. Other grounds for impeachment arguably include “maladministration”, attempts to subvert the Constitution, and serious public misconduct.
All of this is a little vague, but it’s not nothing. What we get from this is that you’re not supposed to be able to impeach a president simply because you disagree with the president’s policies or you don’t like the president’s political party. Are you listening, resisters? The language of the Constitution disposes of most of the claims made by the hotheads running around saying President Trump should be impeached.
I drew most of this analysis from an article by Cass Sunstein, a Harvard law professor who was a legal advisor to the Obama White House. Lots of people are very suspicious of Sunstein. He wrote a book arguing that every generation reinvents the Constitution anew. Way too fluid for my liking. But his article about impeachment appears to be straightforward and accurate. If I’m wrong, there are very sharp minds in my audience who will let me know right away, as they have in the past.
“What the Constitution says about impeachment” by Cass Sunstein
A Constitution of Many Minds : Cass R. Sunstein : 9780691133379
Peter, a Millennial, looks back and objects to the brainwashing he received in public schools controlled by the Progressives. “[I]t’s blatant indoctrination into their liberal cult…,” he writes, and goes on:
Amidst all the discussion of President Trump’s immigration order, I saw the question posed: Do illegal aliens have Constitutional rights? The answer is they clearly do have some, although it is a vast subject and the answer might be different for each right under discussion.
Before getting into this any further, let me say that I do not mind using the term ‘illegal alien’. The term is used in the U.S. Code and is accurate. If you object to the use of the term, I suggest you write your Congressional representative.
Illegal aliens may not have the right to vote but, under current Supreme Court precedent, they do have the right to send their children to public schools for K-12 education. That was settled in the 1982 case of Plyler v. Doe in which the Court struck down a Texas statute which attempted to deny education funding to illegal aliens and, further, struck down a local school district’s attempt to charge them tuition.
The Court did this under the 14th Amendment equal protection clause. The 14th Amendment, by its terms, talks about guaranteeing the privileges and immunities of U.S. CITIZENS, but goes on to give equal protection rights to PERSONS. The upshot: you don’t have to be a citizen to get equal protection of the law.
There are three levels of equal protection rights. Suspect classifications like race get strict scrutiny, meaning the government must have a COMPELLING reason to deny equal protection of the law. The Plyler Court analyzed discrimination against immigrants one notch down, intermediate scrutiny, but found that Texas could not offer even a SUBSTANTIAL interest to justify discriminating against illegal aliens when it comes to K-12 education.
Substantial, compelling - if all this sounds vague and subjective to you, that’s because it is. There is no rigor and no objective standards in a lot of Supreme Court constitutional analysis. What is substantial or compelling to one Justice might not be to another, depending on how they feel that day.
It is what it is, and that’s the system we’ve got – with the Supreme Court on top deciding constitutional questions – for now. It doesn’t always have to be this way, but that’s a subject for another day.
"Illegal Alien": The Proper Terminology
Plyler v. Doe (U.S. 1982)
You wouldn’t want your phone hacked, would you? Then why would you want your very being hacked? ‘Political correctness’ isn’t just harmless blather. It’s psychological manipulation of the highest order guaranteed to keep you stupid. In this sort of ‘Propaganda 101’ short course, thought control expert Stella Morabito shows you how to protect yourself - Are you being threatened with slurs or labels? Are you expected to trade in reality to prop up somebody’s illusion? Etc. Highly Recommended
Supreme Court nominee Neil Gorsuch has the big picture right, not surprisingly. His mentor was Antonin Scalia.
Judge Gorsuch is an originalist. Like Justice Scalia, Gorsuch believes that judges should actually look at the Constitution and the Founders’ intent before interpreting what the words of the Constitution mean. Implicit in this is the rejection of the make-it-up-as-you-go-along “living, breathing constitution” drivel you hear so often from the Left. Gorsuch has said, if judges go by their personal beliefs, they are "little more than politicians with robes."
In one opinion (Cordova v. City of Albuquerque), Gorsuch wrote that:
He wrote in dissent in another case,
His fidelity to separation of powers also comes through in his sharp criticism of the Chevron doctrine in which courts give too much deference to administrative agencies that expand the scope of laws far beyond anything the legislature wrote. It has been said that Gorsuch will make his make mark reining in run-away administrative agencies.
He is also leery of run-away courts. In a dissent in a 2012 gun case, he wrote:
Finally, Gorsuch wrote a book in 2006 criticizing assisted suicide and euthanasia. The book argues that human life is intrinsically valuable and intentional killing is always wrong. Imagine that. Moral absolutes, what a refreshing notion in a world fast succumbing to post-modern gibberish.
So, whether it’s originalism, the separation of powers, or the dignity and worth of the individual, Neil Gorsuch has the big picture right and is a solid pick for the next Justice of the Supreme Court.
“Of Lions and Bears, Judges and Legislators, and the Legacy of Justice Scalia” by J. Neil Gorsuch (Case Western Reserve Law Review - 2016)
“Neil Gorsuch Will Protect Our Constitution as Our Next Supreme Court Justice”
“Neil Gorsuch and the living Constitution lie”
“Trump's Supreme Court pick adheres closely to Constitution”
“Neil Gorsuch Should be Hailed by Privacy Advocates”
“Tenth Circuit: Accessing email is a ‘search’ under the Jones trespass test”
“Trump’s Supreme Court Pick Wary of ‘Politicians With Robes’”
The Future of Assisted Suicide and Euthanasia by Neil Gorsuch
Resource - www.confirmgorsuch.com/
Support the nomination with Tea Party Patriots (sign the petition, host a house party, more) -