Emoluments: 4th Circuit denies Trump’s motion to dismiss emoluments clause case
Emergency Powers: critics say House Democrat legislation for COVID testing and tracing is unconstitutional
14A Equal Protection: U.S. citizen children of undocumented parents file class action to challenge exclusion from $2 trillion COVID relief bill
4A: Senate kills amendment to keep FBI from obtaining Internet search histories without a warrant
Arizona appeals decision knocking down its ballot harvesting law to Supreme Court
1A: Supreme Court sidesteps First Amendment challenge to federal statute making it a come to encourage illegal aliens to stay in the country; Court sends case back for further proceedings on the issues raised by the parties, not the issues the lower court wanted to inject into the case
1A: Minnesota AG Keith Ellison intervenes in lawsuit to defend state harassment statute used to charge woman filming mosque violations
1A: ICYMI, student government at Michigan State asks police to investigate anonymous racist comments made during online forum; police decline; FIRE watchdog group sent letter reminding everyone offensive comments are protected by the First Amendment
1A: “The Tyranny of the Marginalized - The campaign to curtail speech in order to promote social justice is gathering strength.”
Free Expression: Libs line up to deplatform Michael Moore over his latest film which exposes renewables and icons of the environmental movement
Canadian government decree makes 1,500 firearms illegal; that’s what happens when you don’t have a Second Amendment
5A Eminent Domain: 9th Circuit sticks with ruling that a California regulation requiring agricultural businesses to allow union organizers onto their property is not a taking
Habeas Corpus: critic flays 6th Circuit decision granting relief to woman convicted of felony murder on her claims of prosecutorial misconduct and ineffective assistance of counsel
Commerce Clause: Private investigator challenges Utah’s state residency requirement for professional license (only such law in the country)
Book due in October - “A Glorious Liberty: Frederick Douglass and the Fight for an Antislavery Constitution”
Tea Partiers are accustomed to tracing the ideas undergirding the Constitution back to Montesquieu and Locke, but a new book - America on Trial: A Defense of the Founding, by Robert Reilly [reviewed here] - shows that the Founders’ animating ideas go all the way back to antiquity. The book does a deep dive into the fundamental dispute between reason and will, and shows how reason was embodied, and will rejected, in America’s founding. The book goes on to explain why this unending philosophical tussle is still important today. But before we get to the importance of it all, let’s take a quick trip through the history of ideas.
Reilly frames the central question in this philosophical tug-of-war thusly:
The thinking about reason comes down through Aristotle, Cicero, and others until we get to John Locke who is associated with such ideas in America’s founding as universal truth, natural law and rights, popular sovereignty, consent of the governed, the rule of law, political equality, and individual liberty.
The thinking about will was developed by Machiavelli, Hobbes, and others, and forms the basis for political absolutism. It believes human beings do not act out of principle but out of the will to power, the egotistic need to control everybody and everything. One culmination in this line of thinking was Hitler, who was all about the triumph of the will.
Reilly refers to the Lincoln-Douglas debates as illustrating the difference between the two competing philosophies. Lincoln argued slavery is intrinsically evil on principle and could not rightfully be voted in by a majority of the states, as Douglas maintained. Democracy without moral limits is simply the tyranny of the majority, Lincoln argued.
Why is all this important today? First, because the Progressives have been making steady progress and rewriting our constitutional ideas for a hundred years. This is bad because Progressivism, at root, is concerned with the supposedly preordained unfolding of history in accordance with the Progressive vision, not moral principles, and anything goes to get Progressives to their goal. The Progressive’s will to power conjures up rights willy-nilly to abortion, same-sex marriage, and other artifices to gather votes and gain power, to the detriment of religious liberty, freedom of association, freedom of speech, and other benefits of America’s founding. The Progressives have become authoritarian and illiberal. They can only get to where they want to go, now, by trampling on the rights of others. How long will churches that believe in traditional marriage be able to hang on to their tax exemptions? Or, to give another example, transgender speech codes are all about cracking your head until you think right, your moral principles and conclusion based in reason there are only two biological sexes be damned.
Second, there is a split within conservatism with some conservatives now blaming the Constitution and its elevation of individualism for all of modern society’s ills. They believe the old individualistic exploitative order has to be torn down and replaced with “better truths”, whatever that means - no one quite seems to know. Justice Anthony Kennedy is the poster boy for this school of thought, writing in one of his opinions that the “heart of liberty” for every American “is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Justice Scalia mocked this as Kennedy’s “sweet-mystery-of-life passage” - post-modern gibberish. Reading Reilly’s book will better equip you to resist the illiberal conservative communitarians who have grown up in our midst.
Finally, Reilly posits that only reason, not will, can make individuals capable of the morally demanding requirements of living in freedom. If we are to govern ourselves and flourish, we need a solid grounding in virtue to succeed - something more than ‘if it feels good, do it.’ As the Founders observed, only a moral people is capable of living in freedom. The Constitution they wrote is for a moral people only and, as they told us, is quite inadequate for any other. To put it another way, there is only virtue or there is destruction. Destruction is what you will get if you choose will and ‘if it feels good, do it’ over reason and principle. If we don’t deserve a republic, we won’t have one for very long.
Activists Force College to Apologize to Besieged Professor Who Presented True Facts about Violent Islam
1A: Success! Arizona community college apologizes, after activists fire back, for threatening professor who asked test questions highlighting the violent nature of Islam
1A,5A: ‘Occupy’ protesters lose big-time; Second Circuit upholds dismissal of false arrest and other claims arising from 2011 NYC protest
2A: challenge to Florida ban on gun sales to 18-21 year-olds survives motion to dismiss
Amendment: Trump administration files motion to dismiss Dem state attorneys general suit to recognize ratification of the Equal Rights Amendment
1A: “Supreme Court Weighs Whether Parochial Schools Are Exempt From Fair Employment Laws”
2A: Tenth Circuit preliminarily upholds Trump regulation banning bump stocks as machine guns
4A: Ninth Circuit upholds warrantless search of license plate database against man whose rental car was overdue
Two weeks ago [Constitution Minute, 4/19/20], I summarized several court challenges to state pandemic emergency orders around the country. There’s been a whole raft of litigation since then. It’s impossible to keep track of all of it but, tonight, we’ll take a closer look at the legal standards at issue in some of the recent challenges.
Yes, the states have broad emergency powers, but the Constitution is not suspended. Emergency powers are not unlimited. Constitutional protections must be observed. The government must have valid reasons to use health emergency powers in the first place - it can’t act arbitrarily; the health measures imposed must be reasonably designed to achieve health objectives; the benefit must outweigh the burdens placed on people; and authorities must avoid harming people in the process. Those are the legal standards; now let’s apply them to some of the cases that have arisen in the last two weeks.
The government can’t act arbitrarily. California Governor Gavin Newsom ordered the beaches closed in Orange County based on some news photos, but he didn’t close any other beaches in the state. The Huntington Beach city council voted to sue arguing, among other things, the Governor acted arbitrarily in singling out one stretch of shoreline in the entire state for closure, but not other beaches. The mayor of Newport Beach additionally argues L.A. County closed its beaches a month ago and “every single Los Angeles County beach community has a higher per capita COVID infection rate than Orange County’s open beach communities.” The Governor’s order singling out Orange County sounds pretty arbitrary to me.
Second, the governmental interest in exercising emergency powers must outweigh the liberty interests at stake. This is basic due process analysis. A judge in Virginia opened one gun range in the state following this analysis. The judge ruled that citizens’ Second Amendment rights outweigh the state’s interest in protecting health on the facts presented. In Michigan, the Governor settled a case with a legal foundation by trimming back her emergency orders. The foundation vindicated the rights of Michigan residents to travel to their summer homes, reopen their landscaping businesses, and use their boats for fishing, among other things. The foundation had argued the Governor’s orders had trampled on several fundamental rights for no good reason.
Third, the health measures must be reasonably calculated to achieve a health objective. It’s hard to see the health objective in ordering people not to attend drive-in church services where they don’t get out of their cars. A town in Mississippi lifted its ban on drive-in church services after it got sued. The U.S. Justice Department intervened in the case, saying the town could not single out churches when allowing other drive-in establishments, like drive-in restaurants, to stay open. In Kansas, a federal court blocked the state from limiting attendance at church services to 10 people. Congregations must still observe social distancing rules under the court’s decision, but those rules cannot be applied more strictly inside churches than elsewhere, the court said.
In New Mexico, however, a federal court ruled the opposite way, upholding the state’s ban on gatherings of more than five people in places of worship. The court rejected challenges based on the First Amendment rights of assembly and free exercise of religion. The judge said the social distancing ordered by the state was not good enough because death rates were still going up despite social distancing. That bears repeating: the state’s social distancing order was not good enough for this judge. Talk about legislating from the bench, wow! Besides, churches have alternatives - drive-in services and broadcasting over TV and the Internet, the judge ruled.
To sum up, states have emergency powers, but the Constitution is still in effect, and the question in all these cases is, in one way or another, whether government has overreached. Law is the adjustment of competing values and interests and all of that strikes different judges in different ways, as the COVID cases show. But, at some point, even the most hard-core authoritarians among us will have to admit that the burdens and harms of continued lockdowns outweigh the health benefits to be gained. Like the scales of justice show, it’s a matter of balance.
1A Religion: 6th Circuit prevents Kentucky from enforcing social distancing rules against drive-in church service - “While the law may take periodic naps during a pandemic, we will not let it sleep through one.”
1A Religion: Supreme Court hears arguments on Trump administration rule in Little Sisters of the Poor contraception mandate case; decision expected in the summer
1A Religion: transgender case against Masterpiece cake baker Jack Phillips survives motion to dismiss
Discrimination: U.S. Women’s National Soccer Team loses wage discrimination suit when the facts inconveniently showed they actually got paid MORE than their male counterparts during the time in question
1A,5A: “Education Secretary Betsy DeVos Issues New Title IX Rules To Protect Free Speech, Due Process for Accused Students”
Separation of Powers: Trump administration loses another sanctuary city grants case; the executive cannot place conditions on a grant if Congress did not give authority