Commerce Clause: Justice Department won’t appeal lower court decision blocking federal female genital mutilation prosecutions as unconstitutional (States, it’s up to you or we have sharia, it’s that simple.)
1A: Kentucky ultrasound informed-consent abortion law upheld over First Amendment objections by doctors (6th Circuit)
1A: Do we really want to go down the road of compelled speech in this country? We will if the jack-booted thugs have their way on transgenderism (video)
1A: “Fake News and the First Amendment: Free Speech Rules” (Volokh video)
2A: Sandy Hook gun manufacturer takes steps to appeal ruling federal immunity statute unavailable (argument made manufacturer broke state law by glorifying illegal uses for its products)
2A: East St. Louis Housing Authority agrees to allow public housing residents to possess guns
4A: ‘reverse location’ warrants which sweep up data for hundreds or thousands of cell phone users raise constitutional questions
Discrimination: landlords can lawfully decline Section 8 housing vouchers, despite disparate impact theory (disproportionate effect on minorities)
Trademarks based on some racial slurs are OK but others are beyond the pale, and now the Supreme Court is wrestling with whether the same should be true for swear words.
Economic Freedom: challenge mounted to Nashville probation on home-based businesses (piano lessons, recording studios, hair care, etc.)
The leading Muslim organization in Germany called on the government to appoint a Federal Commissioner to fight anti-Muslim sentiment in the country, including so-called ‘hate comments’ on the Internet. That would raise First Amendment concerns, if an Islamophobia czar were appointed in the United States, but we’re only talking about Germany - so no worries, right?
Let’s talk about two other things that happened closer to home this week. First, Democrats in Minnesota asked the legislature to appoint a statewide “Task Force on Islamophobia and Anti-Semitism” to be chaired by Keith Ellison, Minnesota’s Muslim Attorney General or someone appointed by him. Second, Michigan’s Attorney General announced plans to ramp up hate crime prosecutions there and the Civil Rights Department will be documenting hate incidents that - get this - don’t rise to the level of a crime or even a civil infraction. Michigan’s moves are based on a report from the financially self-interested and now-discredited Southern Poverty Law Center claiming to find a six percent rise in the number of hate and extremist groups in the state. Anti-sharia groups are on that list. How would you like to be in Michigan’s new hate speech database and have the government come to your door telling you that you need to get your mind right?
Michele Bachmann said she has no doubt the task force in Minnesota, if created, would recommend authoritarian measures to curb ‘hate speech’ in the state. The goal is the insertion of Islamic blasphemy law into the state code, she said. In case you don’t know, Islamic notions of blasphemy are very different from defamation law in America. In America, truth is generally a defense to a charge of defamation. But in Sharia law, blasphemy is whatever offends a Muslim. If you say, ‘Muhammad was a pedophile’, Muslims will take offense and you will have committed blasphemy, even it’s true. It’s the ultimate heckler’s veto - find one Muslim anywhere in the world who is offended by your speech and your speech is no longer protected. Also in America, under current law, hate speech is protected by the First Amendment. Adopt Sharia blasphemy law and you can pretty much say goodbye to free speech. Free speech advocates are worried that the task force will recommend legislation penalizing hate speech in Minnesota and adopting sharia speech codes for the state, pointing to probable members of the task force from CAIR, which has ties to terror, and Muslim Brotherhood front groups.
We have kind of a paradox at the moment. We’re living in a golden age of free speech, as far as court decisions go. There have been very strong First Amendment cases coming out of the Supreme Court in recent years - Citizens United and Janus, for example. At the same time, support for free expression in society overall is being attacked by Muslims, the SPLC, and others. Conservative speakers aren’t allowed on many campuses, and that’s just fine with a distressingly high percentage of college students. We either do a better job of educating people why we have the First Amendment, or we’ll have more moves like those in Michigan and Minnesota which would have government bureaucrats deciding the parameters of acceptable speech. We will have arrived in Germany, where the truth is now hate speech and can land you in jail.
Electoral College: Delaware and New Mexico join National Popular Vote compact
Shame on CNN! The electoral college did NOT have anything to do with slavery and Madison did NOT call it ‘evil’
Discrimination: female Muslim soldier planning to sue Army after being told to remove hijab to see if hair conformed to regulations
1A: ACLU suing on behalf of former intelligence agency operatives challenging pre-publication review of their books
1A: 9th Circuit denies en banc review of decision requiring charities to turn over lists of their donors to California officials, despite district court finding state can’t keep donor names secure
Creation of ‘hate group’ monitoring units by Michigan and Minnesota AGs raises free expression concerns.
Free Expression: “Germany’s Top Muslim Organization Calls for ‘Islamophobia’ Czar”
1A Free Press: House Dems second-guessing Fox decision not to run a story about a Trump affair, demand reporter’s documents
1A Free Press: Republican bill in Georgia would establish journalism ethics board; critics call it Orwellian
2A: bump stocks are essentially machine guns which are illegal; preliminary injunction while challenge to Trump administration bump stock rule denied (D.C. Circuit)
2A: court blocks sale of 10-round clips as California appeals earlier ruling knocking down magazine ban
5A Self-Incrimination: law review article examines whether suspects can be compelled to enter a password to decrypt a locked phone, computer, or file.
14A Due Process: homeowners win first round in excessive ticketing ‘policing for profit’ case in Georgia
Preamble: Bernie Sanders supporters claim General Welfare clause makes the U.S. a socialist country. Sure, and I’m the tooth fairy.
Alexandria Ocasio-Cortez recently claimed the Republicans changed the Constitution to remove President Franklin Roosevelt from office. Of course, she was wrong. It’s common knowledge the 22nd Amendment was not ratified until 1951, six years after FDR died in office. My Champions of the Constitution network pushed back on AOC, as did many others.
But it got me to wondering: What is the story of the 22nd Amendment and why do we have it?
The 22nd Amendment reads, in pertinent part, “No person shall be elected to the office of the President more than twice....” FDR would not have been eligible for reelection for his third and fourth terms if the 22nd Amendment had been in effect at the time.
There are additional provisions in the 22nd Amendment dealing with unexpired terms, but the main point is that the Amendment codifies the two-term tradition set by George Washington, a tradition unbroken until FDR won a third term in 1940. Washington was rightly celebrated around the world for declining to become President-for-Life, which he easily could have done. Congress approved the 22nd Amendment in 1947 and it took effect in 1951 after it was ratified by enough states. Oklahoma and Massachusetts were the only states to reject the amendment.
The Framers wrestled with presidential term limits at the Constitutional Convention in Philadelphia in 1787. Hamilton and Madison supported lifetime appointments for presidents. Mason and others believed that was too much like a monarchy. A single 7-year term was proposed, but the Framers settled on 4-year terms with no limit on the number. Presidential term limits were proposed numerous times in the 19th Century, but none passed. Ulysses S. Grant sought a third term - nonconsecutive - in 1880 but lost the Republican nomination to James Garfield. Teddy Roosevelt and Woodrow Wilson also sought third terms, under various circumstances. FDR let himself be drafted for a third term in 1940, the widening war in Europe being his excuse. Dewey, who ran unsuccessfully against FDR in 1944, supported presidential term limits, calling unlimited presidencies “the most dangerous threat to our freedom”.
We think of term limits for president as being settled, but more than 50 resolutions to repeal the 22nd Amendment were introduced in Congress, starting just five years after it was ratified and continuing up until 2013. Harry Truman, Mitch McConnell, and Harry Reid all supported repeal. So did Ronald Reagan, who said the 22nd Amendment is antidemocratic.
8A: lethal injection not cruel and unusual punishment despite death row inmate’s medical condition that would generate unusual pain, Supreme Court rules
8A: Supreme Court solicitous of victims’ rights in death penalty case; called on lower courts to recognize delay is harmful to victims' families and to prevent tactical delays
8A: refusal of Texas to pay for inmate’s gender reassignment surgery is not cruel and unusual punishment (5th Circuit)
1A: Supreme Court declines to hear secret taping case involving Planned Parenthood’s sale of baby parts; lawsuit may proceed
5A: One of the remaining challenges to President Trump’s travel ban was thrown out of court. Any right to “familial association” cannot be used to demand U.S. visas for family members overseas.
So-called ‘Equality Act’ would assault conscience rights, institutionalize transgenderism, harm gender dysphoric children, and reduce adoption and foster care
Federal judge allows challenge to Illinois school district transgender locker room policy to go forward; 1A Free Exercise of Religion claim cognizable, but no 5A right not to be seen unclothed by the opposite sex
!A: federal judge rules Arkansas city’s panhandling ban is unconstitutional; physical interaction is protected by the First Amendment
1A: professor’s profanity and discussion of her and her students’ sex lives are unrelated to course material and do not fall within academic freedom (5th Circuit)
1A Religion: Sufi Muslim inmate files appeal to test whether prison can use promise of attendance at weekly prayer services as a motivator to get inmate to improve behavior
2A: California’s ban on magazines that hold more than 10 bullets unconstitutional, federal judge rules
2A: right to have stun guns vindicated in two more decisions
2A: Did the U.S. agree to full implementation of the onerous UN gun control pact? U.S. citizen info to go into global tracking database?
4A: law enforcement is entitled to rely on warrant issued by a court (good faith exception) (6th Circuit)
4A: police cannot lie to get permission to search and avoid securing a warrant. Looking for child porn, policed asked to inspect computers claiming one of them is "sending a signal and/or viruses to computers in Washington." (5th Circuit)
5A Double Jeopardy: disgorgement of profits and imposition of fines for insider trading are civil penalties and do not bar criminal prosecution for same misconduct (11th Circuit)
5A: aggressive City of Baltimore files eminent domain suit to take Pimlico racetrack ... AND THE PREAKNESS HORSE RACE!
6A: speedy trial rights violated when defendants spend 5 years in pretrial detention after evidence goes missing and prosecutors take 3 years to decide on the death penalty (2nd Circuit)
6A: right to counsel violated when appointed attorney insists on insanity defense over defendant’s objections (9th Circuit)
Original meaning of 14A Privileges or Immunities clause protects unenumerated natural rights
Shame! Eric Holder asserts ‘America was never great’ (but was forced to retreat after backlash) #HateAmericaFirstCrowd
The subject of reparations was back in the news recently, when presidential candidates Elizabeth Warren and Kamala Harris voiced their support for reparations for black Americans to redress the legacy of slavery. Warren would also consider reparations for American Indians. So I got to wondering whether reparations would be constitutional.
The subject comes up every few years and can be traced back to Martin Luther King’s call for reparations in 1963 which referred to General William Sherman’s order to give former slaves 40 acres and a mule after the Civil War. Sherman’s order was rescinded and land that had been distributed was taken back.
Does that mean that reparations should be made today? Lots of legal arguments stand in the way:
My concern is that reparations based on race breaches the principle of individual responsibility. I didn’t do anything to the black people I encounter in my life and I should not be made to pay just because I belong to a certain group. There are lots of white people whose ancestors weren’t even in the country in 1865. Group responsibility - otherwise known as guilt by association - is a very dangerous game, but let’s play it anyway, for a minute. Like a liberal friend of mine in Boston says, reparations - OK, but just wait for the counterclaim for making inner cities unlivable. Lots of blacks don’t cause problems or live outside of inner cities, you say? It doesn’t matter. The principle of group responsibility has been announced, so they shall pay no matter what they do or where they live. Here’s another claim on fairness - by the descendants of the 620,000 soldiers who died in the Civil War freeing the slaves. Under the principle of group responsibility, it is only fair and just that present-day blacks pay that counterclaim as well. So you see, all sorts of mischief starts when you breach the principle of individual responsibility and pit one group against another.
Let me suggest that we all find something better to do with our time.
1A: President Trump signs executive order promoting free speech on campus
1A: Trump campus free speech order too vague and uncertain to be constitutional, academics argue
1A: Arkansas enacts campus free speech law
1A: conservative student gets ‘F’ for refusing to lobby for liberal legislation for a class, now gets his day in court
1A: “University Of California Free Speech Center Squashes Project By Black Conservative”
1A: high school student does not have First Amendment protection for off-campus threats of school violence (9th Circuit)
1A: federal judge strikes down FEC rules prohibiting political action committees unrelated to a candidate from using the candidate’s name
1A: San Antonio shutting Chick-fil-A out of airport is probably actionable viewpoint discrimination
2A: New Zealand attack shows failure of strict gun control laws; also, lives were saved when shooter fled second mosque after being confronted with a weapon
Free Expression: CAIR goes after free speech in wake of New Zealand killings (why are we not surprised?)
Free Expression: “U.S. Islamic leader publishes list of 'Islamophobic' terms” - ‘jihad’ and ‘radical Islam’ are hate speech. Sure, and I’m the tooth fairy.
1A Religion, etc.: “HR 5 Equality Act - An Extreme Threat to Religious Freedom, Speech, Privacy, and Women’s Rights”; puts LGBT on same legal footing as race; no religious exemption for churches - wow.
1A Religion: Freedom from Religion Foundation loses in court; tax exemption for ministerial housing does not violate the Establishment Clause (7th Circuit)
14A Due Process: “Utah Governor Signs Bill Banning Abortions on Babies After 18 Weeks”, but trouble ahead: “Federal Judge Strikes Down North Carolina Law Banning Abortions of Babies After 20 Weeks”
Commerce Clause: “Congress can no more license the states to discriminate against interstate commerce than it can license them to violate the Contracts Clause.” (state regulation of insurance)
Electoral College: Big Money (and some Republicans) behind National Popular Vote movement
Electoral College: Colorado activists hope to overturn National Popular Vote bill in first referendum in the country
Court-Packing: “GOP Rep. Proposes Constitutional Amendment to Keep SCOTUS at Nine Justices”
“When Can the President Claim Executive Privilege?”
Shame! Washington Governor Jay Inslee wouldn’t mind forming new nation out of the 21 states in the U.S. Climate Alliance. And this guy is running for President of THESE UNITED STATES? Sheesh!
Earlier this month, a heckler disrupted a College Republicans event at Portland State University in Oregon. The heckler walked around the room ringing a cowbell for an hour and blocked the projector for the speaker’s presentation, before leaving of his own accord. President Trump referred to this incident last Thursday when he signed an Executive Order intended to protect free speech on campus. Several students whose free expression had been infringed were at the signing ceremony, including Kaitlyn Mullen who was working a table for Turning Point USA at the University of Nebraska when school officials tried to bully her into leaving. She refused.
Under the Order, “federal agencies will use their authority under various grant-making programs to ensure that public universities protect, cherish ... the First Amendment and First Amendment rights of their students, or risk losing billions and billions of ... federal taxpayer dollars,” President Trump said. “We will not stand idly by and allow public institutions to violate their students’ constitutional rights. If a college or university doesn’t allow you to speak, we will not give them money. It’s very simple,” he went on to say.
Well, it might not be that simple. Critics have pointed out several potential pitfalls. Some critics say the data show the number of incidents threatening free speech on campus is small and declining. Other critics say the Order is merely symbolic and will have no real-world effect because it only requires schools to do what they are already supposed to be doing to promote free inquiry and uphold their own stated policies about free speech. It may have been written that way because the federal government cannot place conditions on federal grants unless Congress explicitly states those conditions in a statute. As you may recall, this is what prevented the Trump administration from placing conditions on federal grants to sanctuary cities.
Others say, however, that this is federal overreach that could lead to federal micro-management of cutting edge research. Some worry that academic freedom will be politicized and compromised.
A respected group that takes scalps in campus free speech cases pointed out that it’s not clear how federal agencies will enforce the Order and enforcement actions could very well conflict with the First Amendment. This group is called the Foundation for Individual Rights in Education and is commonly known as FIRE.
Finally, a student journalist at a religious school in Ohio worries that, if future administrations continue the Order, it will be used to require the expression of ideas on campus that run counter to the teachings of religious institutions.
The Order will likely be challenged in court when schools start losing money, so stay tuned for that. Also, the Order may encourage the strengthening of campus free speech laws that have passed at the state level in recent years and, further, prompt other states to enact similar laws of their own.
Liberato.US on the radio: Popular Sovereignty Amendment, facial recognition, free speech, pushback on ‘the flag is a rag’ (radio archive - 1st hour)
2A: Connecticut allows lawsuit by Sandy Hook victims against gun manufacturer to proceed
5A Due Process: Supreme Court allows indefinite immigration holds after criminal aliens serve their sentences; dissent argues due process, not statutory interpretation, at issue.
1A,14A: Supreme Court turns away appeal from Hawaii bed and breakfast that refused to serve lesbian couple
1A: Attorney General asserts state secrets privilege in Twitter’s lawsuit asking to publish more details about the National Security Letters and surveillance orders it receives
Emoluments: oral arguments heard in Trump hotel case; judges seem skeptical of foreign influence claims
1A Religion: federal court permits 3 Native Americans to grow long hair in prison (‘hair is an extension of the soul’)
Electoral College: Colorado passage gives National Popular Vote Compact 181 of 270 electoral votes needed to bypass Electoral College; Compact passes Delaware House
Electoral College: challenge to National Popular Vote Compact may have to await a presidential election, observers say
1A: Lafayette city bus system settles abortion ad suit; will allow ads and change policy on political advertising
Free Expression: “UK: Stepdad Called ‘Racist Bigot’ For Opposing Daughter’s Homework Assignment to Write Letter to Her Family About Converting to Islam”
Free Expression: “Putin signs bill banning ‘blatant disrespect’ for Russian state online”
4A: Supreme Court is asked to take case testing whether the Fourth Amendment allows the police to stop a criminal suspect without reasonable suspicion on the ground that the stop is merely "information-seeking"
Double Jeopardy: Manafort’s best shot might be to argue double jeopardy under New York constitution and statute
14A Due Process: the words “acquire”, “receive”, and “transfer” in Indiana statue prohibiting sale of aborted baby parts are ubiquitous in the law and not unconstitutionally vague (7th Circuit)
6A: Supreme Court will hear case testing whether jury verdicts must be unanimous in state criminal cases; Jury Trial Clause is only ‘partially incorporated’ against the states at the moment
“GOP rep to introduce constitutional amendment to limit Supreme Court seats to 9”
“State Constitutions? Why Would Each State Need Its Own Constitution? Part 2”
When Democrats took control of the House after the last election, the question many had was whether they would focus on passing legislation or spend the next two years talking about Trump’s tax returns. The answer has become pretty clear, with the Democrats holding, announcing, or threatening hearings or investigations on Trump/Russia collusion, Trump tax returns, Trump business dealings, Trump corruption, Trump abuse of power, Trump hush money payments, Trump obstruction of justice, Trump impeachment, Trump, Trump, and more Trump.
“The Constitution ... provided no express powers for Congress to investigate, issue subpoenas, or to punish for contempt,” according to a Congressional Research Service report. But the practice was carried over from the British House of Commons whose members were considered the “grand inquisitors of the realm”. (id., p.1) Congress’ power to investigate is implied from its enumerated powers and the Necessary and Proper Clause, all found in Article 1, Section 8.
The first Congressional investigation of the executive branch appears to have been in 1791, when prior business dealings of the Superintendent of Finance Robert Morris were called into question. (id., p.2)
The Supreme Court first placed limits on congressional investigations in 1821 [Anderson v. Dunn] (id. p.4). The Court upheld Congress’ power to hold people in contempt, but said Congress must use the least onerous means to achieve its legislative objectives and no term of imprisonment Congress imposed could extend beyond a Congressional term. In 1881, the Court placed more limits, saying Congress could not inquire into the personal affairs of individuals without actual “valid legislation” in mind. (id. p.5) This was later loosened to any legislative purpose, including oversight of alleged wrong-doing in the executive branch. (id. p.5) Oversight could potentially result in legislation, so a later Court viewed it as fair game for Congressional hearings and investigation.
The Supreme Court has also upheld Congress’ power to issue subpoenas as “an indispensable ingredient of lawmaking.” (id. p.6)
Congress has expanded its powers to investigate by statute on a number of occasions, notably after 1946. Congress beefed up oversight committee staff and upgraded the Government Accountability Office - GAO. Congress now requires more than 2,000 reports from the executive branch every year.
It’s a pretty safe bet that specific constitutional issues will come up as the House Democrats’ obsession with Donald Trump plays out. Will witnesses ‘take the 5th’ like Lois Lerner did? They’re certainly entitled to. The Supreme Court ruled that “[t]he Bill of Rights is applicable to congressional investigations, as it is to all forms of governmental action” in 1957 [Watkins v. United States]. Will Trump administration officials claim executive privilege and refuse to turn over documents? That didn’t work out so well for President Nixon [United States v. Nixon, 1974]. A unanimous Supreme Court rejected his claim of executive privilege and he resigned 16 days later. I’ll keep an eye out for specific issues that come up as the Democrats move forward and report back to you when I can add to your understanding of the constitutional dimensions of what is happening.