Strange as it may sound, there is no right to vote in federal elections expressly stated in the text of the original Constitution. The reason appears to be that the Founders were nervous about democracy descending into mob rule and the majority voting to take away the rights of the minority. At the Constitutional Convention of 1787, James Madison expressed the view that “the freeholders of the country would be the safest depositories of republican liberty.” In other words, Madison believed that people who owned land free and clear would be better guarantors of minority rights than other people would be, better able to stop the tyranny of the majority.
Madison’s view was on the wrong side of history. Voting rights steadily broadened in the country and several constitutional amendments just assume the right to vote exists, for example the 19th Amendment broadening the vote to women and the 26th Amendment lowering the voting age to 18.
The U.S. Supreme Court has long deemed the right to vote to be a fundamental right. In 1886, the Court said the right to vote is fundamental because voting preserves all other rights. [Yick Wo v. Hopkins, 1886]. In cases in the 1960s, the Court wrote that the right to vote is essential in a democratic society and restrictions on it strike at the heart of representative government. [e.g., Reynolds v. Sims, 1964] Because the right to vote is considered fundamental in Supreme Court jurisprudence, restrictions on voting must meet strict scrutiny, the highest judicial standard applied to rights. The government must have a compelling interest and the restriction must be narrowly tailored to achieve that interest.
There is concern, coming from the Left, that the right to vote - not expressly stated in the Constitution and reliant on the Supreme Court’s good will - is on shaky ground. They cite laws passed by the Republicans in North Carolina cutting back on early voting, curbing voter-registration drives by private groups, eliminating same-day registration, and imposing voter ID rules. Restrictions of this magnitude would be intolerable if imposed, say, on free speech or freedom of religion, they argue, but the Supreme Court opened the door for them when it stopped federal supervision of elections in southern states in 2013. [Shelby County v. Holder]
There is even an organized effort called FairVote to get a constitutional amendment explicitly guaranteeing an individual right to vote. If you take a look at FairVote’s board, you will find lots of connections to left-wing groups and causes, even a tie to George Soros’ Open Society Foundation.
So you know they’re up to no good, but here are some what-if’s to ponder: What if the Democrats succeed, one day, in taking the House, the Senate, and the White House, then proceed to pack the Supreme Court? What if the permanent leftist majority on the expanded Supreme Court decides the right to vote isn’t deserving of strict scrutiny after all? What if the new majority starts upholding laws in blue state restricting the rights of Tea Partiers and others on the political Right to hold voter registration drives and knock on doors for candidates?
What the Supreme Court giveth, the Supreme Court can take away. I’d be tempted to say a constitutional amendment guaranteeing the right to vote would be in order, but I already know it would become the source of boundless mischief by the Left.
5A Property: More landlords litigate CDC’s COVID eviction ban
1A: 6th Circuit strikes down public transit ban on ‘political’ ads as unworkable and viewpoint discrimination (anti-Islam ad at issue)
1A: despite First Amendment wins at some colleges, others continue to impinge on free speech rights
1A Religion: school rule barring students from all extracurricular activities for religiously motivated hairstyles poses free exercise of religion problems (5th Circuit)
Free Expression: giving in to the impulse to censor ‘error’ would mean no one, to this day, could say ‘the earth is round’
1A Religion: Colorado churches prevail in court against their state’s COVID restrictions
Electoral College: “The Founders did not create the Electoral College for the purpose of bolstering the power of slave states, nor did it have the effect of doing so.” Slave states voted against it.
State Constitution: state statute which creates irrebuttable presumption sex offenders will reoffend violates due process and reputation rights
Nationwide Injunctions: handing out nationwide injunctions like candy usurps legislative powers and short-circuits the process of similar cases percolating through the circuit courts of appeal before Supreme Court challenge
Shame! on Joe Biden for saying America is an ‘idea we never lived up to’. He is showing us he is captured by the deliberately concocted ‘400 years of racism’ narrative dialectic pushed by people who want to destroy fidelity to American values so they can seize power for themselves and impose their tyranny on us. #NameTheGameAndTheGameBlowsUp
5A: Residents’ lawsuit against Seattle for affirmatively supporting lawless autonomous zone is allowed to proceed; property rights and due process violations at issue.
LGBT Wars: “Trump Admin Resolves Transgender Athletes Case in Favor of Conservative Women’s Group”
1A: student radio station manager sues Arizona State University over removal, alleges free speech violation
1A Religion: Federal judge temporarily blocks enforcement of Colorado’s COVID restrictions against church that was treated differently from similarly situated institutions
4A: court allows use of investigative lead generated by facial recognition software where it won’t be the basis for testimony at trial (NY trial court)
Title IX: "[P]laintiff has ... made a sufficient showing that defendant has threatened his academic future in violation of his rights to equal treatment regardless of his sex ...." (federal judge in New York)
Affirmative Action: “Black applicants to Yale University are up to eight times more likely to be admitted than Asian applicants with the same level of academic skill”; Justice Department on the case
14A: Kentucky abortion regulations not an ‘undue burden’ on abortion rights, 6th Circuit panel concludes
Shame! Radical leftists attacking the 4th of July, seeking to replace it with Juneteenth
In 2011, I wrote a report on Structural Racism describing how the theory had Marxist roots and was making significant inroads in civil rights legal circles and popular thought. I warned unless somebody with influence started standing up to the systemic racism crowd, the theory would become a 20-year overnight success. I was right about absolutely everything, except it only took nine years. It’s 2020 and now we see professional athletes and National Guard troops taking a knee. We also see the trained Marxists of Black Lives Matter raking in hundreds of millions of dollars to fight the chimera of systemic racism. The effects will be ruinous if systemic racism theory continues to go unchallenged by the political Right. No less than your rights to free speech and to practice your religion hang in the balance. Make no mistake: the Left is using the Constitution to destroy the Constitution.
Systemic racism theory derives from Critical Race Theory which holds that racism is ingrained in the fabric of American society and that institutional racism is pervasive in the dominant culture. These power structures are based on white privilege and white supremacy, which perpetuate the marginalization of people of color. Any disparity of outcome between groups - in health, income, education, etc. - is due to racism, not to personal choices or any other factor. Systemic racism theory is all about erasing disparities between groups through authoritarian, collectivist means, starting with society-levelling tax rates of 60 to 80 percent.
Critical race theory is an outgrowth of critical legal studies which has Marxist roots. Critical race theory ultimately derives from critical theory which came from the Frankfurt School, a group of theorists pushing the cultural Marxism of Antonio Gramsci. ‘Critical’ in this context doesn’t mean analytical thinking. It means criticizing everything and tearing everything down until there’s nothing left. This is what cultural Marxists seek to do, to destroy every vestige of society that currently exists in order to soften you up to accept their authoritarian, collectivist program - run by them. The ultimate source of all this is Karl Marx, the original destroyer who said, “constructing the future and settling everything for all times are not our affair... it is all the more clear what we have to accomplish at present: I am referring to ruthless criticism of all that exists...”
Recently, we saw another turn in the evolution of critical race thinking. You are a racist unless you are an in-your-face social justice warrior constantly engaged in fighting racism. This turn of thought is obviously crazy. Three other recent developments show the country is becoming lop-sided in promoting diversity to the exclusion of all other values and is headed in the wrong direction:
California requires counties to meet racial quotas (“health equity metrics”) before they can get out from under the state’s COVID lockdown orders. Washington state barred religious grandparents from fostering their one-year old granddaughter because the child might, maybe, someday, hypothetically speaking, grow up to be gay or transgender in an unfriendly household. Third, the insane practice of meting out school discipline by racial quotas continues in some places.
Unless a serious counter-operation is mounted from the Right, we will see a steady stream of stories like this until freedom of speech, freedom of religion, and other constitutional values we hold dear are completely devoured in the name of diversity.
But it’s not too late. None of this is unassailable super-precedent or set in stone. There have been major reversals in equal protection theory before - Plessy came along announcing the formula ‘separate but equal’ which is now in the dustbin of history. President Trump has done his part - prohibiting the teaching of Critical Race Theory at federal agencies and federal contractors. What is needed from us activists is a war room - a sophisticated counter-operation that deconstructs the outlandish novelties coming from the other side and continuously pushes out counter-messages far and wide to key influencers and the general public, to loosen the grip systemic racism theory now has on the popular imagination. If you have ideas on how to bring such a war room about, please get in touch with me [tips at liberato.us].
Not a day goes by without some article appearing to the effect that Trump is a dictator or a threat to democracy and the Constitution. Actually, Trump has defended the Constitution in at least four important ways.
First, he defended the Presidency against baseless impeachment charges. There was no Trump/Russia collusion, so the Democrats pivoted to the Ukraine phone call and obstruction of Congress. There was nothing of substance there, either, and the President’s defense team rightfully prevailed in the Senate trial. Nancy Pelosi and the Democrats showed themselves to be the threat to the Constitution, not Trump, by lowering the standard for initiating impeachment to virtually nothing at all.
Second, Trump showed the national security and foreign service bureaucracy that it is the President, and not they, who controls national policy in foreign affairs and war. Who could forget the underlings during the impeachment process criticizing the President’s foreign policy and saying they know better than he does. Those bureaucrats are the threat to the Constitution, not Trump.
Third, Trump has appointed scores of originalist judges to the federal bench. He fought for Justice Kavanaugh and now he’s fighting for Amy Coney Barrett to be confirmed to the Supreme Court. The Democrats who have obstructed the constitutional process for confirming judges are the threat to the Constitution, not Trump.
Finally, Trump has firmly rejected globalism and reasserted American sovereignty at every turn. He pledged to put “America First” in his inaugural address. In a speech to the UN last year, Trump called on member states to embrace nationalism and reject globalism. He said, “The free world must embrace its national foundations. It must not attempt to erase them or replace them. The future does not belong to globalists, the future belongs to patriots.” That’s right. The U.S. Constitution, which the President swore an oath to uphold, is all about We the American People forming a more perfect Union, not the Left’s wackadoodle dream of We the Global Citizens chasing after a perfect world and heaven on earth. The globalists are the threat to the Constitution, not Trump.
President Trump won’t be going on an ‘apology tour’ - or bowing down to foreign leaders like his predecessor did - any time soon, and we Americans are better off for his fidelity to the Constitution.
Kamala Harris tells big fib during debate: Lincoln declined to nominate a replacement Supreme Court Justice, not because he believed the vacancy should await the outcome of the election, but out of political calculations and the Senate being out of session
Equal Protection Run Amok:
RFRA: D.C.'s 100-person cap on outdoor gatherings substantially burdens religious practice; federal judge cites D.C. Mayor participating in big political protests while restricting outdoor church services
4A: 6th Circuit upholds warrant where Michigan marijuana grower gave police a tour of his operation believing it was legal; it wasn’t, and the grower’s actions constituted consent
5A: butterfly sanctuary’s procedural due process claim moves forward; entering sanctuary without notice to build Trump’s border wall is deprivation of property without due process if established by the evidence (D.C. Circuit)
Electoral College: the National Popular Vote Compact, which would allow a handful of states to pick the president, is unconstitutional without consent of Congress
Electoral College: Adam Schiff supports doing away with the Electoral College
‘Liberty and Justice For All’ project unites academics and other heavyweights in defense of free speech and other traditional American values
Shame! on the California Department of Transportation for taking down the Hollywood-style Trump sign claiming it could cause driver distraction on stretch of highway where billboards abound
1A: Several religious liberty cases on Supreme Court docket - faith-based exemption from antidiscrimination laws by a private foster care agency, etc.
Discrimination: The LGBT wars continue -“Virginia Forces Christian Ministries to Adopt 'Government Ideology' or Pay $100K”
1A: Satanic group declares abortion a ‘religious ritual’, sues sign company over refusal to put up billboards
1A,Elections Clause: federal judge rules Minnesota mask mandate does not violate free speech even though it prevents the non-wearing of masks to protest the mandate. Plus, the mandate does not rise to the level of regulating the time, place, or manner of elections.
2A: ‘We don’t need guns; we have the police.’ But, “When the government refuses to stop looting and rioting, armed self-defense is the only deterrent.” #WagesOfWoke
2A: Supreme Court declines to hear challenge to Nebraska law prohibiting juveniles who commit offenses from possessing firearms until age 25
2A: federal judge orders L.A. to pay NRA $150,000 in legal fees for case ending in city ordinance requiring businesses to disclose ties to the NRA being struck down
2A: undercover sting video shows Arizona Democrat candidate hiding true gun control agenda
4A: police ruse to lure man home so they could search him and his car - which were not covered by the warrant unless in close proximity to his residence - ruled an unreasonable search and seizure in child pornography case (9th Circuit)
Discrimination: “Applying a disparate impact standard to school disciplinary policies is both unlawful and unwise....” A “neutral policy” should not be subject to racial quotas preventing discipline for students who should get it.
14A Due Process: it violates Due Process for prosecutor to repeatedly state, and judge to endorse, that the presumption of innocence no longer applies in a case (9th Circuit)
Separation of Powers: federal judge temporarily blocks Trump administration broad suspension of work visas - meant to protect American workers in the wake of COVID - as exceeding power delegated from Congress
State Constitutions: Michigan Supreme Court rules Governor exceeded her authority under the state constitution in extending emergency pandemic orders after the legislature declined to do so
The subject of religious tests for office came up several times this past week in connection with the nomination of Amy Coney Barrett for the Supreme Court.
You may recall that Illinois Senator Dick Durbin asked Barrett, “Do you consider yourself an orthodox Catholic?,” during her confirmation hearing for the Seventh Circuit Court of Appeals in 2017. Senator Dianne Feinstein notoriously said to Barrett at that time, “so many of us on this side have this very uncomfortable feeling ... [because] ... the dogma lives loudly within you.”
Article VI of the U.S. Constitution prohibits religious tests for public office. It reads:
England had a religious test that excluded Catholics from office from 1673 to 1829. The religious test was a reflection of the fact that the Church of England was the official state religion there. England’s religious test for office was intended to protect the national church and the state “against perils from non-conformists of all denominations, infidels, turks, jews, heretics, papists, and sectaries.”
Nine American colonies had religious tests, but the only objection voiced at the Constitutional Convention to banning them was they weren’t needed because of the supposed “prevailing liberality” regarding religion. During ratification, however, some argued in favor of religious tests as a safeguard against corruption in office, or to align with what most states were doing at the time, or out of prejudice against ‘heathens and Jews’.
The Supreme Court applied the ban on religious tests in Article VI to the states in a 1961 case [Torcaso v. Watkins]. In that case, Maryland had refused to allow a man to be a notary public because he would not declare his belief in God. The Supreme Court wrote:
I could not find any cases directly concerning religious tests for office after 1961. So it’ is all pretty much cut and dried and settled law. If Durbin and Feinstein try this line of attack again this time around, Barrett’s supporters should not hesitate to say anti-religious bigotry lives loudly within them.
1A: Public school Miami U in Ohio task force wants professors fired, students dismissed for not worshipping at the altar of diversity, free speech be damned
1A: federal judge rules woman likely to prevail on First Amendment claim after being banned from school property for referring to public official’s Muslim faith at school board meeting (E.D. Wis.)
1A: CAIR claims Florida Governor DeSantis’ Combating Violence, Disorder and Looting Act violates free speech and assembly
8A: NPR series explores whether the death penalty by lethal injection is cruel and unusual punishment - a drowning sensation is commonly reported, but does the defendant feel pain?
Discrimination: Black applicants for tech positions because of prior criminal convictions lose disparate impact claim; no evidence they are representative of the applicant pool in question (2nd Circuit)
Resource - short explanations of the basic constitutional principles of separation of powers, federalism, and individual rights
President Trump’s pick to fill the vacancy on the Supreme Court, Judge Amy Coney Barrett, has been praised for her fidelity to the Constitution and respect for the rule of law.
She has criticized strict adherence to the legal doctrine of stare decisis and indicated she would rather follow the Constitution instead of Court-made doctrine. She does not view prior Court precedents as always binding. She has argued the doctrine should only be a “weak presumption” and judges should have more flexibility in constitutional cases. She has endorsed the view that “a justice’s duty is to the Constitution” and it is legitimate for judges to decide according to their best understanding of the Constitution rather than blindly follow precedent. She rejects the notion that any court “can declare a permanent victor in a divisive constitutional struggle.” This has the Left going nuts because it suggests she might vote to overturn Roe v. Wade if confirmed.
She favors textualism which holds that courts cannot go against the plain language of a statute to effectuate legislative intent or fix a poorly written law. She wrote in 2017, “it is illegitimate for the Court to distort either the Constitution or a statute to achieve what it deems a preferable result.” This has the Left going nuts because she has specifically called out Chief Justice John Roberts for reaching out and saving the Obamacare statute with his cockamamie ‘it isn’t a tax, it is a tax’ gyrations.
You won’t hear her talking about a ‘living, breathing Constitution’ any time soon. She appears to be an originalist, of the variety that gives the words in the Constitution their original public meaning. Also, she has argued judges have a limited role to play in our system of government and should stay in their lane. In 2016, she wrote that, “People should not look to the Supreme Court as a super Legislature. They should look at the Court as an institution that interprets our laws and protects the rule of law, but doesn’t try to impose policy preferences – that’s the job of Congress and the president.”
Her critics fear she will follow the dictates of her Catholic faith instead of the law on issues like abortion. However, regarding the death penalty, she wrote: “Judges cannot—nor should they try to—align our legal system with the Church’s moral teaching whenever the two diverge.” They should, however, recuse themselves from a case if their personal convictions keep them from doing their job. “I would never impose my own personal convictions upon the law,” she testified.
As for her judicial record, she has joined opinions allowing the death penalty to go forward in a couple of cases. She dissented in a Second Amendment case where the majority upheld a lifetime ban on firearm possession by a nonviolent felon, arguing the result was unconstitutional because there was no evidence the felon was a hi-risk individual. In an abortion case, she joined a dissent which argued Supreme Court precedents do not apply in the case of sex selection abortions. The dissent she joined emphasized not taking precedents beyond the facts at hand. That opinion argued, “We ought not impute to the Justices decisions they have not made about problems they have not faced.” She wrote the opinion in a case invalidating the university suspension of a male student who was found guilty of sexual violence. The school did not afford enough Due Process to the student, starting with the fact it refused to disclose the evidence upon which it based its decision. That was enough, in Barrett’s view, to render the process fundamentally unfair.
Maybe I’ve lived too long, but Jeff Sessions said a lot of nice things about the rule of law in his confirmation process and was a disaster as Attorney General. More recently, Justice Gorsuch - praised by conservatives and appointed to the high Court by President Trump - expanded transgender rights in an opinion every bit as cockamamie as Roberts’ Obamacare opinion. Much has been written about Justice Harry Blackmun, a Nixon appointee, disappointing conservatives. I’ve mentioned before that the Supreme Court has become too powerful in ways the Founders never intended. While having Amy Coney Barrett on the Supreme Court would be far preferable than, say, a Hillary Clinton, let’s just hope that Barrett doesn’t succumb to Potomac Fever when she gets to Washington from Indiana.