“Two issues millennials care about that Gorsuch will affect on the Supreme Court are criminal justice reform and privacy rights — both issues where Gorsuch is much more in line with millennials than general Republican orthodoxy.”
“Millennials care about criminal justice reform because of what they see as a biased system that disproportionately imprisons more minorities for minor charges, rather than enforcing true equal treatment under the law. And on privacy rights, use of technology drives millennials' skepticism of government intrusion and surveillance.”
“In A.M. v. Holmes, Gorsuch wrote a dissenting opinion that police should not be allowed to arrest students for ‘burping in class.’”
“… young Americans should appreciate that Gorsuch will be with them on personal liberty and civil liberties....”
The Democrats’ hostility to the Constitution and originalism were on full display in the Gorsuch hearings this past week. Constitutional law professor Randy Barnett of Georgetown, who got the ball rolling for us in the Obamacare individual mandate case, took on a Gorsuch critic in a law professor’s blog. The other professor ripped Gorsuch and originalism up one side and down the other. Barnett, in turn, ripped the other professor for being ignorant of the past 25 years of originalist theory, methodology, and practice.
I had not looked closely at originalism before, so I was surprised to learn that there are many flavors of originalism, and most originalists no longer try to understand what the Framers meant when the Framers wrote the Constitution. According to Barnett, looking at the Framers’ intent went out the window for most originalists in the 1980s. Now, most originalists just look at the meaning of the words the Framers used in writing the Constitution.
The other professor criticized originalism because, in his view, there are three Constitutions – one the Framers wrote, one the states ratified, and one the public understood at the time. Barnett knocks this down by saying no one has ever shown how the words on paper meant something different to the Framers, the states, and the general public. For example, no one can show that the word “arms” in the Second Amendment meant something different to the Framers than it did to the states or to the public. Most originalists today, Barnett says, look to the original public meaning when interpreting words in the Constitution.
There is a further split between originalists who believe that erroneous past court decisions trump the original public meaning of the words in the Constitution, those who don’t, and a third camp that would return to original public meaning gradually over time through new cases.
Barnett’s view of originalism is downright boring. The meaning of a word as used then versus now might make a difference here and there, as in the word ‘commerce’. In the 18th century, commerce meant the trading and transportation of goods that are produced. The meaning did not include the activities of agriculture or manufacturing, for example. Today, ‘commerce’ means all economic activity – agriculture, manufacturing, trading, and transportation are all included.
By confining originalism to the meaning of specific words, Barnett cuts out from originalist analysis all the fun stuff – for example, all the big philosophical and Constitutional questions, like unenumerated rights which I’ve mentioned on these webinars before.
Also, I thought that the parsing of individual words was called textualism, something for which Antonin Scalia was famous. Textualists don’t ask what the drafters of a law or constitutional provision intended. They ask what the words on the paper mean.
To my way of thinking, it would be strange to have a written Constitution and not even ask what the Framers meant by it, or not be informed by their overall design. So, for a couple of reasons, I’m not fully on board with Barnett’s analysis of originalism.
But he’s the expert and his article is worth reading because it brings you up to date on originalism and he knocks down a lot of what the Democrats said about Gorsuch along the way.
“… the students were complaining about the education they were receiving. One girl said, “I thought the classes and professors would be challenging, but I’m not getting the education I was promised when I came.” The other students agreed that their classroom experiences were falling short of their expectations.”
“What struck me most was that these were Clemson students. Clemson University: a “public ivy” institution with a reputation for top faculty and student excellence in the classroom.”
“The conversation of that day embodies the great problem within higher education. In the Classical Age of learning in ancient Greece, Plato argued that true education not only conveyed to us a right knowledge but also taught us to desire those things that are right and good. By the standard of the ancients, the current state of higher education is unquestionably prostrate and lamentable.”
The fix? Start a reading club. You will be following in the footsteps of J.R.R. Tolkien and C.S. Lewis.
The Lord of the Rings or “The Cultural Significance of the Barbie Doll” – your choice.
See the complete post at Intercollegiate Studies Institute
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?