Discrimination: lawsuit against Domino’s for failing to make website and mobile phone app accessible to the blind can continue, Supreme Court says
14A Equal Protection: former felons, granted the right to vote in Florida, sue over state law requiring them to pay their fines before voting, calling the measure an unconstitutional poll tax
4A: FISA court judge rules FBI improperly accessed foreign surveillance database containing tens of thousands of phone numbers and email addresses
10A: federal judge rules 2017 Tax Act cap on tax deduction for state and local tax (SALT) payments does not coerce states
Free Expression: “'Fake News' Law Goes Into Effect In Singapore, Worrying Free Speech Advocates”
It can’t happen here? Read on:
“Congress Drafting Bill To Create Federal ‘Social Media Task Force’ To Police Online Speech”
1A: Supreme Court term includes more than a dozen religious liberty cases
2A: Michigan lawmaker introduces legislation to impose liability for shootings in gun-free zones
2A: “NJ Magazine Ban Backfires as Not a Single One Has Been Turned In”
Dormant commerce clause challenge to Santa Monica Airbnb ban fails (9th Circuit)
Electoral College: ‘Faithless electors’ who were fined under state law ask Supreme Court to take their case
In defense of the Electoral College: “No matter how fairly one tries to allocate political power, some state or someone will have a special edge from time to time. It’s unavoidable. But it’s not undemocratic.”
Alan Dershowitz: ‘woke’ hard Left is the greatest threat to civil liberties - demand censorship to ‘feel safe’, dismiss due process and presumption of innocence
Which do you choose - America’s unalienable rights, or the UN’s perverted view of human rights that government can take away at any time on any pretext?
Law profs introduce “Interactive Web Site To Explore the 100 Supreme Court Cases Everyone Should Know”
Kudos: “Immigrants praise US Constitution, bash socialism at Constitution Week”
The new Supreme Court term starts this week and some big fights are on the docket.
The first big Second Amendment case in 10 years involves a New York City law - since changed - that attempted to confine gun rights to the home and seven specific firing ranges. Plaintiffs in the case include gun owners who want to go to other firing ranges and another gun owner who wants to transports guns between two homes. The Supreme Court could decide to dismiss the case as moot because there’s a new law changing all of this, or use the occasion to expand gun rights.
An abortion case involves a Louisiana statute almost identical to one the Court struck down in 2016 requiring abortion doctors to have admitting privileges at a nearby hospital. The 2016 Court said it’s difficult get the credential and it does little to make abortions safer. This time around, the Court could follow the same logic and declare the Louisiana law unconstitutional as an “undue burden” on abortion rights, using standard analysis from the 1992 Planned Parenthood v. Casey decision. But the Court could affirm the judgment from the 5th Circuit below upholding the statute - opening the door to more health regulations in the abortion industry - or even overturn Roe v. Wade entirely.
Three LGBTQ employment cases are before the Court this term - two involving gay men and one involving a transgender who were all terminated from their jobs. At issue is whether the word ‘sex’ in Title VII of the Civil Rights Act can be puffed up by the courts to include sexual orientation and gender identity even though Congress didn’t write it that way. If the Supreme Court plays along, then employment law in these cases would get federalized and states could no longer make their own decisions in these matters. I bet there are a lot of lawmakers around the country, who have had plenty of time to take up this issue, who wish the Supreme Court would take this problem off their hands so they don’t have to decide it or face the voters on it.
There are three DACA cases before the Court. It’s pretty much conceded at this point that President Trump has authority to terminate the DACA program and could do so tomorrow, even though these cases are pending. The lower courts in these cases all agreed that the judiciary may not review an administration decision on the DACA program made for policy reasons. The problem is the DHS memo stating the administration’s intent to wind down DACA gives a legal reason, not a policy reason, for doing so. This is pretty arcane, but you may recall the Court split 4-4 on the legality of the similar DAPA program - Deferred Action for Parents of Americans. It could be the Court will use the occasion to rule more broadly on whether such programs are legal in the first place.
Finally, depending on when the 5th Circuit makes its decision, the Texas Obamacare case could be before the Supreme Court this term. The argument follows John Roberts’ logic in the Obamacare decision in reverse. Roberts’ upheld the individual mandate as a tax. But the individual mandate tax has been zeroed out and, in effect, no longer exists. The individual mandate is otherwise an unconstitutional overreach offending the Commerce Clause. Because the mandate is now unconstitutional and was the essential linchpin of the entire law, the entire law should be struck. Stay tuned on this one.
The New York City Commission on Human Rights just outlawed the use of the term “illegal alien”. The Commission will fine you $250,000 if you use the term.
Here’s how their Guidance document justifies the new rule: “‘Alien’ — used in many laws to refer to a ‘noncitizen’ person — is a term that may carry negative connotations and dehumanize immigrants, marking them as ‘other’..... The use of certain language, including ‘illegal alien’ and ‘illegals,’ with the intent to demean, humiliate, or offend a person or persons constitutes discrimination.”
As the Commission admits, the term “illegal alien” is used in many laws. It appears in six places in the U.S. Code. (See here and here.) I bet you never knew your Congress was a bunch of haters. They wrote the term into law six times. They just couldn’t help themselves.
I jest, but let’s play along and make-believe the term “illegal alien” really is hate speech. So what? Hate speech is protected by the First Amendment. You can say all the hateful things you want. The Supreme Court has been very clear - you have the right to say hateful things, no matter how much they offend people. Remember the Westboro Baptist Church that showed up at funerals picketing against homosexuality? Their speech was hateful, but it was protected. Remember the Slants trademark case where an Asian-American rock band was allowed to get a U.S. trademark even though ‘slants’ is a derogatory term that offends people? Protected.
In the Slants case, Justice Alito wrote for the Court:
The New York City Commission has a history of running roughshod over the First Amendment. It previously mandated the use of preferred gender pronouns despite the obvious constitutional problems of forcing people to use terms contrary to their beliefs and in support of a government-mandated ideology.
The Commission is out of control. They admit the term “illegal alien” is used in law, but they don’t care. They know their new rule is unconstitutional but damn the torpedoes, full speed ahead! You just have to fall in line or they’ll crack your head with a $250,000 fine.
Here’s what needs to happen. Somebody in New York needs to challenge this travesty. When the Commission sues them, they need to fire back just as hard as they possibly can. Counter-sue the government officials involved personally for acting ultra vires - beyond the law. Sue them for damages for denying people their civil rights. And go after the Commission’s lawyers’ law licenses - haul them up on ethics charges for filing baseless claims to enforce a directive they know is completely unconstitutional.
Either this, or more civil rights commissions will issue more speech codes and we will watch our freedoms slip away.
14A: federal judge rules it is permissible for Harvard to discriminate against qualified Asian applicants in the name of increasing diversity.
1A: New York City Human Rights Commission bans the term “illegal alien” (blatantly unconstitutional)
Indefinite Detention: federal judge blocks Trump administration’s attempt to end the Flores agreement and institute longer detention of illegal alien families with children
Impeachment: it’s amusing to hear people who don’t care a whit about the Constitution cite the Constitution in their impeachment arguments - they’re so transparent. E.g.:
1A: The fight is on to force Catholic hospitals to perform sex change operations in California
1A: House Dems may seek legislation to strip tax-exempt status from SPLC-designated ‘hate groups’
Due Process: Mississippi city argues in court illegal aliens have no constitutional rights. (Sorry, but this is a losing argument; 5A/14A due process clauses cover ‘persons’, not just citizens)
14A Due Process: see if you can decipher what constitutes an ‘undue burden’ on abortion rights after federal judge upholds 2 Virginia abortion restrictions and knocks down 2 others. #CrazyQuilt
Preemption: D.C. Circuit panel upholds FCC decision to rescind net neutrality rule, but leaves states free to adopt their own rules
Due Process Right to a Fair Trial: Supreme Court to hear arguments in case limiting insanity; implications for other situations where the definition of ‘crime’ is important
Kudos! To the 5-year-old boy so upset by American flag touching the ground he recites the Pledge of Allegiance (captured on doorbell camera)
1A: 9th Circuit panel knocks down Montana ban on political robocalls - ‘restrictions on political messages do not survive strict scrutiny’
Pro-Second Amendment film ‘The Reliant’ to screen one day in theaters Oct 24th - highlights the folly of gun control which leaves criminals the only ones who are armed
Emoluments: Third emoluments case against Trump reinstated (Second Circuit)
1A: businesses have free speech rights and can’t be forced to make wedding invitations for same-sex couples (Arizona Supreme Court)
Presidential Qualifications: federal judge temporarily blocks California law requiring Trump to cough up tax returns before getting on primary ballot
Preemption: 23 states sue Trump administration for revoking state power to set auto emission standards
1A: 6th Circuit strikes down Tennessee statute requiring permission to put messages on billboards as invalid content-based regulation
1A: "Keep pushing me and it won't end well." "I've given plenty of warnings." "I swear to Allah and everything I hold dear that I will resort to murder in the next 30 days." 7th Circuit: not protected by the First Amendment
Free Expression: Facebook admits it is a “publisher” in court filing; major ramifications for legal fights ahead (platforms cannot be held liable for what their users say, but publishers can)
Free Expression: Tony Blair think tank thought police want government to go after hate groups, ban them from media and from speaking at universities
2A,6A: defendant may choose jury trial when state criminal conviction can lead to denial of gun rights under state law (Nevada Supreme Court)
2A: Dems vote down amendment applying red flag bill to gang members. Lawful citizens yes, gang members, no. And they get upset when we call them gun-grabbers.
Electoral College: National Popular Vote referendum to be on Colorado ballot next year
Due Process: European doctor sues FDA for the right to prescribe abortion pills to U.S. women over the Internet
Separation of Powers: CFPB agrees in Supreme Court brief its structure is unconstitutional (the prohibition on removal of the CFPB's Director absent cause is invalid); Court could grant certiorari and appoint devil’s advocate
5th Circuit rules FHFA structure unconstitutional - another agency with a single director who cannot be fired absent cause
C-SPAN airs Justice Neil Gorsuch talking about his book “A Republic, If You Can Keep It”
Shame! on Portland women’s soccer fans who booed armed forces swearing in ceremony
Kudos! to Winthrop University in South Carolina for instituting a required 3-credit hour Constitution Competency course
I’m very much looking forward to being with you at Tea Party Patriots’ ‘Stop Socialism - Choose Freedom’ rally on Thursday.
I went back through the Constitution Minutes to see what I had written about socialism on prior occasions. This is what I found:
People who have considered the question have cited various provisions in arguing that socialism is incompatible with the Constitution. For example, Article 4, Section 4 of the Constitution says the United States shall guarantee to every state a republican form of government, not a dictatorship. Article 1, Section 8 sets up limited government and says Congress only has certain enumerated powers. Under the 5th Amendment, no one can be deprived of property without due process of law. If the government takes property, it’s supposed to provide just compensation. This would seem to prevent the wholesale nationalization of industries under socialism.
Moreover, early Supreme Court jurisprudence strictly enforced property and contract rights on natural law grounds. [Chemerinsky, Constitutional Law, 4th Ed., p. 622 – citing, e.g., Fletcher v. Peck from 1810] The rationale changed to the due process clause in the Lochner era, but the Court continued to strike down state laws that regulated private business.
But Justice Oliver Wendell Holmes wrote a famous dissent in the Lochner case declaring that the “constitution is not intended to embody a particular economic theory, whether of paternalism … or of laissez faire.”
Then the New Deal changed everything. The Supreme Court began upholding federal statutes regulating business. The last time the Supreme Court struck down a regulation on constitutional due process grounds was 1937. [Chemerinsky, p. 641]
If socialism means equalizing incomes, we have a progressive income tax no one has successfully challenged on constitutional grounds. What principle stops progressive taxation until it completely levels everyone’s income? I can’t think of one.
If socialism means government ownership of the means of production, we’re already half way there in terms of a constitutional stamp of approval. The Chrysler bondholders were wiped out after the financial crisis of 2008. Thanks to Obama, their money went to UAW retirees who were unsecured creditors. And it was all considered perfectly legal. AIG shareholders are still in court trying to get back what they believe was wrongfully taken from them in the financial crisis.
And I haven’t even mentioned the amendment process yet. FDR proposed a Second Bill of Rights guaranteeing everyone a job, a home, and healthcare, among other things. The Second Bill of Rights would even guarantee a right to adequate recreation. You can’t have Utopia without adequate recreation, right?
We have a Supreme Court that turns night into day and makes up rights out of whole cloth. Why not a right to an equal income? If Obamacare is a tax and, at the same time, not a tax, anything is possible at the Supreme Court.
The delegates [to the 1787 Constitutional Convention] did not put any particular economic system into the Constitution, or rule any out. If you want to preserve limited government and free markets, don’t count on the Constitution to keep socialism at bay. Roll up your sleeves and get to work.
I wrote that in 2017. Now, just for a little teaser about what I have coming up for you: I’m reading the proposed constitution of the Revolutionary Communist Party of the United States. It’s almost a hundred pages long, whereas the entire U.S. Constitution can be read in little over an hour. These Leftists are nothing if not wordy. But there are some real doozies in Revcom’s proposed constitution I’ll be telling you about in coming weeks, starting with one-party rule. Yep, they wrote themselves into their own constitution all over the place as being in charge of, among other things, political nominations and the military. No other political party - or even the possibility of another party - is mentioned.
So, three cheers for the U.S. Constitution and its enshrinement of limited government which allows political parties of all stripes to exist - even ones like Revcom that want to destroy the country as we know and love it.
Stop Socialism - Choose Freedom!
Shame on FEC Chair Weintraub for Trashing the Electoral College (pushback from the Champions of the Constitution Grassroots Network)
RBG: good luck amending the Constitution to get rid of the Electoral College
5A Due Process: federal judge declares terrorist watch list unconstitutional and asks the parties for briefs on what remedy to impose.
5A Due Process: Supreme Court lifts nationwide injunction against Trump safe third country asylum rule while litigation continues
Attorney General William Barr rails against nationwide injunctions in op-ed, calls for Supreme Court to reexamine their use
Justice Gorsuch’s New Book: A Republic, If You Can Keep It
2A: NRA sues San Francisco over ‘domestic terrorist’ designation
1A Religion: Residents sue San Antonio for excluding Chick-fil-A from the airport
1A Compelled Speech: public university can compel government employee professor to use transgenders’ preferred pronouns.
5A Privacy: Virginia is for Lovers who don’t want to identify their race on marriage licenses, suit alleges
“Maine set to become first state to allow ranked voting in presidential election” - practice denies victory to candidate who gets the most votes, but previously held constitutional
Separation of Powers: a judge is not a prosecutor and cannot decide to prosecute people when the D.A. refuses (Massachusetts Supreme Court)
1A: “Corporations and the First Amendment: Free Speech Rules” (#6 in Volokh video series)
1A: You don’t have a constitutional right to shout down a speaker (federal court in Colorado)
Free Expression: Christian woman freed after spending 10 years on Pakistan’s death row for ‘Islamic blasphemy’ exhorts ‘stay true to your beliefs’
2A: “Leftists Said Maine's Permitless Carry Law Would Cause Chaos. Now It's the Safest State in US”
2A: gun confiscation would be met with mass resistance, jury nullification, and violent clashes
4A: “Doorbell-camera firm Ring has partnered with 400 police forces, extending surveillance concerns”
Equal Protection: children born outside the U.S. to unmarried noncitizens become citizens if the mother, but not the father, becomes a citizen. Third Circuit: violates equal protection
Claiming discrimination on the basis of Jewish ‘race’ or ‘heritage’ is a ticklish question, echoing back to the Nazis who discriminated against the Jewish ‘race’
The impulse toward tyranny of the majority is back. That’s why we have a constitutional Republic and that counter-majoritarian thing called the Bill of Rights
Shame! on Arizona HOA for telling vet’s widow to paint over American flag on curb because ‘it doesn’t fit the neighborhood look’
Kudos! to the blind autistic Georgia boy who painted an American flag and sent it to the White House (President Trump sent back a nice reply)
The title of Justice Neil Gorsuch’s new book, due out Tuesday September 10th, will be familiar to every Tea Partier: A Republic, If You Can Keep It.
The book is a collection of essays, speeches, past opinions, and thoughts on the separation of powers, civil liberties, and the role of judges under the Constitution. Gorsuch believes originalism and textualism are the best guides to interpreting the Constitution and protecting our freedoms.
Justice Gorsuch is “everything conservatives hoped for and liberals feared,” the liberal dean of the UCal Berkeley law school, Erwin Chemerinsky, told the Washington Post. While on the Supreme Court, Gorsuch voted to uphold the travel ban on certain Muslim and other countries, to add a citizenship question to the census, and to allow a ban on transgenders in the military to go into effect. But he is a maverick, sometimes siding with the liberals, for example, in a case overturning a precedent allowing local and federal prosecutions for the same offense. Gorsuch is not afraid to revisit the Court’s earlier jurisprudence. In his two terms on the Court, he has voted to overturn, or suggested taking a fresh look at, established precedent 11 times.
But the most interesting aspect of the book to me is the connection he draws between civic education and mutual respect in political discourse on the one hand, and self-governance and popular sovereignty on the other. He is distressed that people don’t understand the basics of the separation of powers. “Only about a third of Americans can identify the three branches,” Gorsuch told the Washington Post. “Another third can only name one branch of government.” Ten percent thinks Judge Judy serves on the Supreme Court, he went on to say.
Gorsuch is worth reading because he discusses the duty of every American to help maintain the Republic. It is not a given we will always have a Republic. It takes work to maintain one. It’s either that or go back to having a tiny elite rule over us because we are too lazy to govern ourselves.
Gorsuch is also worth reading because he is young - he just turned 52 - and prolific: he writes more pages of opinions than any other Justice currently sitting on the Court. This is somebody who is going make his mark on constitutional jurisprudence well into the next generation. He will influence the direction of the Court and the country on important issues of public policy for decades to come.
Separation of Powers: All 53 Republican senators rebuke 5 Democrat senators for threatening the Supreme Court and assaulting judicial independence in gun case
1A Press: The government deciding what is fake news? FEC chairwoman and Defense Department moving in this direction. This is trouble.
Discrimination: Supreme Court is asked to take 3 cases presenting question of whether ‘sex’ in the Civil Rights Act includes sexual orientation and gender identity; do agencies really have that power or should it be left to Congress to decide?
1A: unions fighting Janus mandatory dues decision at the state level; 100 bills to skirt Supreme Court ruling introduced
1A Religion: Peace cross case to figure prominently in suit against New Hampshire VA hospital for Bible display
2A: 4th Circuit rules Charleston church shooting victims can sue U.S. over lapses in vetting gun purchasers
1A Free Press: court restores press pass of punk reporter who swore at President Trump in the Rose Garden
1A Religion: 3rd Circuit rules Pennsylvania House need not give nontheists opportunity to offer the invocation
4A: 11th Circuit becomes 11th court of appeals to uphold nationwide remote-access computer search in child pornography cases; this warrant exceeded magistrate’s authority but officers relied on it in good faith
4A: 1st Circuit upholds search of package believed to contain methamphetamine even though warrant application mistakenly included wrong attachment describing a different package
Discrimination: a church cannot take control of an entire town and discriminate against nonmembers or use the town’s resources to advance the church’s interests (the infamous Warren Jeffs again)
1A: proposed Alaska Bar Association rule to combat discrimination by lawyers threatens free speech and religious liberty
2A: 7th Circuit again upholds Chicago’s ban on assault weapons and high-capacity magazines
5A Self-Incrimination: panel discusses compelled decryption of smartphones
14A Due Process: a criminal court that depends on fines for a substantial portion of its budget is acting unconstitutionally in not providing a neutral forum
Electoral College: opponents of the National Popular Vote Compact in Colorado gathered enough signatures to place a referendum on the 2020 ballot to repeal enabling state legislation
Federal prosecutor in Ohio files anti-Semitism charges, warns white nationalists they don’t have a constitutional right to have people listen to their garbage, but others do have the right to live and worship in peace
Shame! on the woman who destroyed several U.S. flags in Virginia neighborhoods
Kudos! To Nexstar television for starting the broadcast day on its 171 stations with the National Anthem
The Constitution is not only one of America’s founding documents, it can be a really good engagement tool for your festival booths.
My Tea Party created a Constitution quiz and it was a big hit at the Irish festival in our area yesterday. We had as many as eight people taking the quiz at one time. A big sign - How Well Do You Know Your Constitution? - and a scoreboard underneath drew people to our booth.
The questions, ten in all, started off easy - What is the age requirement for U.S. President? What amendment protects the right to keep and bear arms? The questions got harder from there: True or False - Laws enacted by the States are the supreme law of the land. True or False - Members of Congress can give themselves a pay raise before the next election.
A couple of the questions were disputed by Constitution geeks. For example: Does the General Welfare clause authorize social spending? We asked the question because actions justified by the General Welfare clause are supposed to benefit all the people, not just a subset like people who receive government checks, yet the General Welfare clause is being cited more and more often now to justify all kinds of things, including more social spending. Two people objected to the question, arguing that writing government checks to welfare recipients ultimately benefits all the people. So we will drop out problematic questions in future events because the point of the exercise is to educate the public about the Tea Party and our core values, not spend 20 minutes debating fine points with Constitution geeks. After scoring each individual who took the quiz and placing a colored dot on the scoreboard to mark their results, we quickly pivoted to asking what they think the Tea Party stands for. Many had never talked to a Tea Partier before. We gave each individual a card expressing our core values and giving our website address.
It was very gratifying to see so many people who know next to nothing about the Tea Party display such an interest in the Constitution. It is often said the Constitution is one of the few things left that all Americans have in common. The tremendous interest the quiz generated at our booth yesterday certainly shows lots of ordinary Americans are still very attached to our Constitution - and this was in a Deep Blue area! There’s hope for this country, yet.