Due Process: Trump administration correctly implementing court’s order to avoid blanket separation of families at the border and allowing separation for cause (unfit parents with criminal history, disease, etc.)
Separation of Powers: 5th Circuit lifts temporary stay against Trump administration’s diversion of $3.6 billion in military construction funds to build the border wall
Article 1, Section 8 War Powers: 2001 Justice Department legal opinion arguably backs constitutional validity of President Trump’s strike on Suleimani
2A: hero who stopped Texas church shooting to be awarded Texas Medal of Courage
14A: five states looking at keeping transgenders out of women’s sports
4A: Pensacola shooting typifies unresolved Issue - should people have unbreakable encryption to keep Big Government out of their business? Or should law enforcement be given a ‘back door’ in terrorism and national security cases?
Dems claim Texas move to require personal (non-digital) signature for voter registration is unconstitutional
5A/14A Due Process + 1A: Massachusetts court declines to legislate from the bench, rules no constitutional right to assisted suicide; appeal planned. Court also said doctors have free speech right to discuss assisted suicide with patients.
1A: Supreme Court turns away texting suicide case and the argument defendant was convicted for words alone in text urging her boyfriend to kill himself
1A: Seattle Public Library decides to give meeting space to trans-skeptical feminist group; “we do not believe that stifling speech for anyone will result in positive outcomes for anyone”
1A: Indiana school district tells parents they can’t criticize it on social media; ACLU says policy is “flagrantly” unconstitutional
2A: Legislation introduced to make South Carolina a Second Amendment sanctuary state
4A: renters do not have to submit to an inspection before they can challenge rental inspection ordinance, Pennsylvania appeals court rules
14A: forthcoming law review article discusses whether a small percentage of African ancestry makes one a ‘disadvantaged minority person’ eligible for government contract set-asides
Equal Rights Amendment might subject women to the military draft, disallow same-sex bathrooms, abolish women-only shelters, and mandate government funding of abortion (not to mention eliminate minority set-asides for government contracts). Is that what you want?
Proposed amendment would give populous states more U.S. Senators (upsetting the deal that drew small states into the union in the first place)
Shame! Texas homeowner’s association orders active military resident to take down American flag. Kudos to his neighbors who raised their own flags in support.
The Equal Rights Amendment was back in the news this week. All eyes are on Virginia where a bill to ratify the ERA is working its way through the state legislature. The bill is expected to pass, making Virginia the 38th state to ratify the amendment, setting up a big constitutional fight.
Congress set a seven-year deadline for ratification and only 35 states had done so before the allotted time expired in 1982. Recently, three states - Alabama, Louisiana, and South Dakota - have sued the Archivist of the U.S. for illegally holding the ratification process open beyond the deadline and refusing to recognize the fact that five states rescinded their ratification by 1982.
This past week, the Justice Department Office of Legal Counsel weighed in with an opinion stating “because three-fourths of the state legislatures did not ratify before the deadline that Congress imposed, the Equal Rights Amendment has failed of adoption and is no longer pending before the States.” It would be unusual for the Archivist, who is part of the executive branch, to ignore the definitive statement of the executive branch on the subject.
Democrats have introduced legislation to have Congress remove the deadline. The Justice Department opinion said there is no constitutional text or judicial precedent allowing for that. [p.28] While Congress has already extended the ERA deadline once, the Justice Department said the pending legislation is different this go-around because it purports to remove ANY deadline, not just extend the ERA again for another definite period of years. [p. 26] Also, removing the deadline would raise a whole host of nettlesome questions, such as whether a future Congress could kill a proposed amendment by shortening the deadline, and whether a two-third’s vote would be required for all questions relating to changing the substance or procedures of proposed amendments.
But the Justice Department does not have the final say. Virginia Attorney General Mark Herring has already said he will defend the ERA in court when the state ratifies it.
You can be sure all of this will end up in the Supreme Court eventually. Don’t forget the question of whether states can rescind their ratifications. The Constitution is silent and the Justice Department gave no opinion.
Lots of unanswered constitutional questions here. The show is about to begin.
Supreme Court docket full of contentious issues - gun rights, DACA, LGBTQ, abortion, state aid to religious schools, CFPB, Trump financial records
1A Speech: You can burn the U.S. flag but not the gay flag? #PretzelLogic You get 16 years in prison for burning the gay flag - wow! This hate crime stuff has gone way too far.
Amendments: Virginia election prompts 3 states to sue to stop 1970s Equal Rights Amendment on theory deadline for ratification has passed
1A Religion: public health trumps Amish schoolers’ challenge to state vaccine law, NY Supreme Court rules
1A Religion: Michigan county threatens to demolish Amish homes unless they modernize. (And this leaves the Amish in this country, where, exactly?)
1A Speech: Texas woman challenges USPS regulation against customizing personalized postage stamps with religious content (‘it is viewpoint discrimination to allow all views except religious views’)
2A: Virginia gun sanctuary movement spreads to Kentucky
2A: Gun owner puts quick end to Texas church shooting
2A: “Virginia Congresswoman Proposes Bill Empowering Credit Card Companies to Track, Report Gun Purchases” #AuthoritarianLeft
4A: Maryland groups oppose Baltimore police drones
4A: information gathered on U.S. citizen incidental to surveillance of non-nationals abroad does not require a warrant, 2nd Circuit rules
5A Eminent Domain: Tenth Circuit declines to overturn trial judge’s ruling government need not compensate criminal defendant for home destroyed in police action
10A: panel discusses ‘horizontal federalism’ whereby states seek to impose their policies on other states
14A: documentary tells the story of one of the worst Supreme Court decisions ever - Korematsu
The General Welfare clause does not mean ‘anything goes’. The clause was intended to limit Congressional actions to those that benefit the whole, not some group.
Mayor Pee-wee Pete just wrong in asserting the Founders didn’t understand slavery was evil; they teed things up to get rid of it.
If a tree falls in the forest and no one is around to hear it, did the tree really fall?
If the House votes articles of impeachment and doesn’t transmit them to the Senate, is the President really impeached? Can the Senate proceed to a trial without the House formally presenting articles of impeachment?
We start, as always, with the Constitution but, unfortunately in this case, the Constitution doesn’t take us very far. Article I, Section 2 gives the House the sole power of impeachment. Article I, Section 3 gives the Senate the sole power to try all impeachments. Article II, Section 4 says the President and other civil officers of the U.S. “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” That’s pretty much it. Impeachment is mentioned in a couple other places in the Constitution not relevant to tonight’s discussion.
So the Constitution is silent on the current situation where the House has voted to impeach but has, so far, refused to present the articles of impeachment to the Senate. I’m sorry to have to tell you there is no clear answer to this quandary. Legal experts disagree.
Some of the commentary has focused on House and Senate rules. The Senate adopted its current impeachment rules in 1986. Rule 1 says the Senate impeachment process begins after the House appoints managers to carry the articles of impeachment to the Senate. Rule 3 says the Senate trial generally begins the day after the House formally presents articles of impeachment to the Senate.
Could the Senate change its rules and proceed now? After all, none of these steps are set forth in the text of the Constitution. One argument is that the Constitution gives the House the sole power of impeachment and this implies it includes the power to specify when the act is final. The counter-argument is that all of this puts form over substance and the Constitution does not require formal presentment. The Senate has the sole power to try impeachments and therefore has the power to decide when and how that happens.
If the Senate changed its rules, there would be a constitutional impasse. The Senate would say the President has been impeached and the House would say no, he has not. It’s not clear the courts would have any business wading in. Article I, Section 5 of the Constitution says each house of Congress may determine its own rules. If the courts do wade in, another question would be whether Supreme Court Chief Justice John Roberts would have to recuse himself since he would be presiding over any impeachment trial. That could leave the Supreme Court deadlocked at 4-4 and no way out of the impasse.
I tell you folks, the November election can’t get here soon enough.
BREAKING: “Appeals court strikes ObamaCare mandate, sends case back to lower court”
1A Establishment: Freedom from Religion Foundation strikes again, bullies third-graders in Oklahoma until school yanks nativity scene from annual show
5A Eminent Domain: feds knew Houston reservoir likely to flood residences, therefore liable for Hurricane Harvey damage, judge rules
5A Double Jeopardy: Manhattan judge tosses state fraud prosecution against Paul Manafort, clearing the way for a presidential pardon; DA vows to appeal
1A Association: federal judge strikes down L.A. ordinance forcing companies to disclose ties to the NRA to get government contracts
1A: Judge Willett reverses himself, now dissents from 5th Circuit’s approval of suit attempting to impose liability on BLM protest organizer for injury to Louisiana police officer when violence was not incited
14A: Samoans are American citizens, federal judge rules
1A: legal groups sue to stop State Department requirement that all applicants for U.S. visas register their social media handles; argues registration chills free speech
8A Cruel and Unusual Punishment: Supreme Court lets 9th Circuit ruling stand striking down local laws against homeless people sleeping outside
4A: Oregon Supreme Court rules officers can no longer seek consent to search vehicle or ask other non-germane questions during routine traffic stops; ruling seen as curtailment of racial profiling
1A Religion: legal foundation says school district in New York showed impermissible hostility to religion in refusing formation of student Christian club
1A, Commerce Clause: pharma group argues Oregon price transparency laws would force disclosure of trade secrets and are, therefore, unconstitutional
1A Free Press: Maryland law requiring newspapers to publish information about political ads unconstitutionally burdens First Amendment rights without doing much to remedy foreign interference in elections (Fourth Circuit)
1A Establishment: review sought in two cases testing whether religious schools have the right to choose their own religion teachers
5A Self-Incrimination: pharmacist who willingly submits to 4-hour interrogation to build case against other is ruled to have given voluntary statements because he freely chose to submit and could have left at any time; conviction affirmed (Third Circuit)
Discrimination v. Right of Association: this is the U.K., but could happen in the U.S. - pro-life Catholic kicked out of political party sues for religious discrimination
Commerce Clause: Louisiana expected to sue California over new law prohibiting importation and sale of alligator-skin products
Economic Freedom, 1A: Georgia woman sues state nursing board for threatening to fine her $500 for truthfully calling herself a midwife even though she doesn’t have extra nursing credentials
Shame! “USC Students Can't Recite the Pledge of Allegiance” - you have no understanding of what enables you to be living such a great life. You’re taking an awful lot for granted.
Kudos! To comedian Ronny Chieng, Malaysian immigrant making a Netflix show about the joys of living in America and how natives don’t appreciate many of the freedoms and privileges we have here
Too bad we don't have the ‘28th Amendment’ requiring Congress critters to live under the same laws they impose on us. Repeal the Obamacare Congressional exemption now!
You may have heard that the Second Amendment sanctuary movement is taking Virginia by storm. There are overflow crowds at city and county council meetings. Events are still unfolding. The best source for keeping up with the situation is the Virginia Citizens Defense League website - vcdl.org. At the moment, there are 93 Second Amendment sanctuary cities, towns, and counties. The number is sure to rise because sanctuary resolutions are being considered in two dozen more places.
There was a report that all of this caused the Democrats to abandon plans to introduce an assault weapons ban even though they now control the state legislature and have the Governor’s mansion. However, they modified their proposal to grandfather in existing weapons and want to require them to be registered. Critics say gun registration is the first step to gun confiscation and the Democrats’ new position must still be opposed.
The Democrats are also talking about calling out the National Guard to enforce future gun control measures. Governor Ralph Northam said there would be no ‘retaliation’ but did say there would be unspecified ‘consequences’ if law enforcement officers refuse to enforce laws on the books. Legal analysts agreed the Governor could call out the National Guard, but said it would be unprecedented to do so given it would be the first time the National Guard will have been used to enforce laws many see as tyrannical. The Virginia National Guard released a statement saying it would not speculate on the possible use of the National Guard for law enforcement purposes.
Other wild talk is flying around. A sheriff in Virginia threatened to deputize thousands of citizens to get around any gun control measures the new Democrat legislature might pass. One of the sanctuary counties passed an additional resolution allowing it to order up a militia to ensure that everyone can own a weapon. One commentator even said the globalists are trying to provoke a civil war and we might see a revolution if authorities try to use deadly force on the populace.
So it’s all pretty amazing to watch, especially since I live in Virginia, but there may be less to gun sanctuaries than meets the eye. There is commentary to the effect these sanctuary resolutions are just symbolic. They don’t have any teeth and won’t stop the enforcement of any state or federal gun laws. Unlike illegal immigration sanctuary city laws, the Second Amendment sanctuary measures generally don’t prohibit local government employees from using funds or resources to assist in the enforcement of federal or state gun laws or regulations. Moreover, these measures are generally nonbinding resolutions, not laws at all.
So it’s not clear how all this is going to shake out. I just wish there had been this kind of energy all along in Virginia. Then maybe Tea Partiers and others on the political right would not have to wonder what’s in store for us now that our state has gone blue.
Finally, if you don’t know why we have the Second Amendment, it’s to prevent tyranny. My Potomac Tea Party made a short video on this last year and it’s still on our Potomac Tea Party website. (Citizens, Give Up Your Guns! - Why We Have the Second Amendment)
Virginia Gun-Quake Continues: Dems abandon plans for assault weapons ban (Constitution news round-up)
2A: Virginia gun-quake leaves Dems quaking in their boots; they abandon plans to introduce assault weapons ban
2A: Virginia sheriff threatens to deputize thousands of citizens to get around any gun-control measures the new Democrat legislature might pass
2A: West Virginia lawmaker introduces bill to hold gun-free zones legally liable for shooting injuries
2A: use of ghost gun in teen shooting in California shows the futility of gun control: #WhackAMole
2A: What restrictions of free speech would you tolerate? - Extreme Risk Protective Order for free speech? One book a month? Banned books for dangerous individuals? Banning "assault magazines" with more than 10 pages? Got the point yet?
Free Expression: Singapore slaps ‘fake news’ label on posts of government critic under rubric of combatting false information online. #CarefulWhatYouWishFor
1A: Supreme Court agrees to hear challenge to Delaware law requiring political balance of the major parties on its courts; small parties object
1A: Minnesota woman files suit after being threatened with harassment prosecution for filming zoning violations at her neighborhood mosque
1A: religious freedom group appeals U.S. military’s decision to ban religious dog tags
1A: Christian school in Maryland contests exclusion from state school choice program because of its traditional beliefs on marriage despite no actual discrimination on basis of sexual orientation
1A Religion: judge cites Religious Freedom Restoration Act in acquitting activist who leaves water for illegal migrants in wilderness areas
4A: sister had no authority to consent to a search of her brother’s garbage bags inside her storage unit; evidence (fentanyl) excluded and conviction vacated (1st Circuit)
4A / Due Process: is it reasonable to toss personal items when taking down homeless encampments? 9th Circuit says a class action is not the way to find out.
8A: Supreme Court upholds suspension of federal executions pending litigation in lower courts
Unenumerated Rights - protect through substantive due process or the Privileges or Immunities clause?
note this in 9A doc to read
9A: Go from zero to sixty on the Ninth Amendment and unenumerated rights in one short article
1A/Discrimination: deceptively named Equality / Fairness for All Act “expands government power to dictate how individual Americans should think, speak, and act”; free speech and conscience rights threatened in healthcare, public square, school sports, and elsewhere.
14A: Well, this had to happen eventually - lawsuit claims SAT and ACT college admission tests discriminate on the basis of race and wealth
Commerce Clause: federal judge affirms California’s right to dictate meat-production techniques to the other 49 states (‘comply with our rules or don’t sell here’)
Kudos! to the U.S. Constitution Scholarship Foundation in Florida for holding free after-school classes on the Constitution to remedy the deficiencies in today’s STEM-heavy high school curriculum
Hamilton on impeachment (Federalist Papers #65) - “there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.”
Understand Clarence Thomas’ jurisprudence and you will understand a lot about the original intent of the Constitution.
In Thomas’ view, the Constitution is as current today as it was when it was drafted in 1787. It is the blueprint for our self-governing Republic where the People are sovereign, not subjects to be ruled.
If the Founders had wanted a ‘living, breathing Constitution’, they could simply have copied the British who don’t have a written constitution, Thomas has said. But the Founders chose to have a written Constitution and it was understood at the time that its meaning would not change, except through amendment.
Thus, the Founders’ design was ‘perfictible’, as Thomas has put it. This was illustrated by the Civil War amendments that secured the blessings of liberty for former slaves and their progeny.
Thomas believes the modern Supreme Court and the other branches of government have deformed the Constitution. He has taken it as his mission to remedy the situation. Thus, he views stare decisis - the doctrine that judges should follow precedent - as being applicable to the lower courts. But Supreme Court Justices must be faithful to the Constitution, not prior cases which should be overturned if they have deviated from our founding documents.
This makes Thomas often a minority of one on the Court, but his model is Justice Harlan’s solitary dissent in Plessy v. Ferguson, one of the worst decisions the Supreme Court has ever handed down. The Plessy Court ruled that ‘separate but equal’ satisfied the 14th Amendment’s Equal Protection clause, but Harlan’s dissent eviscerated this view and he eventually prevailed. Like Harlan, Thomas is leaving a road map for future Justices - in Thomas’ case, to return to the Founders’ original design.
To give one example, the Supreme Court struck down Chicago’s ban on owning handguns in the 2010 McDonald case on the grounds it violated the Second Amendment as applied to the states through the judicially-created ‘substantive due process’ doctrine under the 14th Amendment. Thomas agreed the ban should have been struck down but would have done so on the grounds that the Second Amendment is one of the liberties secured to U.S. citizens against the states by the Privileges or Immunities clause of the 14th Amendment. Thomas views ‘substantive due process’ as made up from whole cloth and as having the unfortunate consequence of letting the Supreme Court create new rights willy-nilly out of thin air. The Court has done on more than one occasion, such as the fundamental federal right to abortion created in Roe v. Wade. The Privileges or Immunities of U.S. citizenship, on the other hand, are relatively more circumscribed and much less subject to judicial mischief. Thomas would like to see previous erroneous Supreme Court rulings overturned, substantive due process scrapped, and the Supreme Court getting back to the original text of the Constitution.
Likewise, Thomas views the Supreme Court’s yielding to the New Deal and the consequent expansion of the Commerce Clause and the rise of the administrative state as additional judicial wrong turns that need to be corrected. Those wrong turns have given rise to any number of absurdities like the Montana rancher who dug two ponds on his own land and was imprisoned for supposedly polluting the navigable waterways of the United States.
Previous Constitution Minutes have pointed out instances where we are worse off by straying from the Founders’ design - for example, the ill-advised War Powers Act and the turning of the First Amendment proscription against the establishment of an official religion into a quagmire of hard-to-understand distinctions about what constitutes an endorsement of religion and what does not. All originalists owe a debt of gratitude to Justice Thomas for standing for First Principles even when it means standing alone.
Gun-Quake in Virginia! 20+ Locales Declare Second Amendment Sanctuaries (Constitution news round-up)
Gun-Quake in Virginia! - 23 locales declare Second Amendment sanctuaries after blue wave election; more expected
2A: less to gun sanctuaries than meets the eye; symbolic resolutions that don’t have any teeth and won’t stop enforcement of state or federal gun laws
2A: “Olympic Venezuelan Shooter: Banning Guns Is the First Step of Socialism”
Separation of Powers: Financially-interested refugee resettlement agencies sue Trump administration over executive order empowering locales to decline refugees; argue statute only provides for consultation
1A: No, the n-word is not “obscenity”. Federal judge allows lawsuit by student barred from graduation ceremony for prior use of the word.
Free Expression: Merkel’s Muddle - ‘we have to curb free speech or society will no longer be free.’ Huh? Sure, and work is freedom - Sieg Heil!
4A: Fourth Circuit upholds conviction of sex trafficker whose electronic devices were seized and searched on re-entry through JFK airport; evidence fails ‘border search’ exception but come in under ‘good faith’ exception
5A Due Process: authorities did not interfere with terror suspect’s right to travel when they subjected him to advance screening, prolonged questioning, and multiple searches (5th Circuit)
5A Eminent Domain: legal foundation takes up case where police destroyed house in course of an arrest and denied property owner compensation
10A: feds object to restrictions on ICE arrests at state courthouses
14A Equal Protection - second challenge filed to California’s gender quota law forcing companies to put women on their boards of directors
Discrimination: Texas arrangement to allow death row inmates access to state-employed spiritual advisors just prior to execution discriminates against Buddhists because the state doesn’t employ a Buddhist advisor (5th Circuit).
Electoral College: “California Dems Flood Colorado With Cash Ahead of National Popular Vote Referendum”
Antifederalists prescient in foreseeing runaway Supreme Court and unchecked expansion of federal power through innocuous language like the ‘general welfare’ and ‘necessary and proper’ clauses
Panel discusses the 3 co-equal branches and separation of powers - executive privilege v. congressional oversight, and what should courts decide
Shame on Mayor Pete for joining the Reconquista! You’re running for President of these United States and you’re pandering to people who don’t want there to be a United States? Good grief! #NotMyPresident
Kudos to Melania Trump for defending the right of Baltimore teens to boo her
Separation of Powers - federal judge Oregon blocks Trump administration rule requiring immigrants to show proof of health insurance before being allowed to enter the country; Congress did not delegate such power, judge rules
First Amendment issues likely to propel David Daleiden’s Planned Parenthood undercover sting video case to the Supreme Court
1A Conscience: “California Supreme Court: Catholics Must Insure Abortions on Demand Because They Are ‘Medically Necessary’”
Equal Protection, etc. - Utah woman charged with lewdness for going topless in front of her children in her own home; husband “similarly clad” but not charged
1A: law professor’s video series on free speech continues with the rules pertaining to government property
Shame on the grandiose FBI employees who exchanged messages about how they had ‘never liked the Republic’ and had ‘initiated its destruction.’ Shame on you - the Republic gave you your salary - GIVE IT BACK! I’ll take the Republic over you juvenile impudent putzes any day.
Kudos to everyone who made noise - “GVSU student government reinstates Pledge of Allegiance after backlash from students, parents, donors”