Week before last, two socialist authors were granted space in the august New York Times, no less, to push their poison that the U.S. Constitution is an “outdated relic” expressly intended to subvert democracy.
The authors are an editor and writer at Jacobin magazine, a socialist publication which doesn’t mind engaging in the quintessentially capitalistic practice of selling advertising.
The authors make a number of blithe assertions which I will demolish shortly. But, overall, to hear the authors tell it, you’d think the Constitution had unleashed a bloody Reign of Terror. Oh, wait a minute, that was the Jacobins in France in the socialist French Revolution of 1789. Thanks to the authors’ namesakes, France didn’t have a stable government again for 75 years.
The authors assert that the Constitution is “the foundation for a system of government that rules over people,” rather than a means of popular self-government. This shows a complete misunderstanding of the Constitution. The Constitution begins with “We the People” because we have popular sovereignty. We the People rule ourselves; we don’t have a King George ruling over us.
But the authors are right in one respect. The Constitution did not set up a pure democracy, and good thing it didn’t. The Founders were concerned with preventing mob rule and the tyranny of the majority, both of which develop under pure democracy. Even with all our system’s checks and balances, we’ve had instances in this country where one side has gotten too powerful and rammed stuff down our throats, like Obamacare and the New Deal. Do we really want modern-day Jacobins ramming single payer down our throats with real death panels this time - guillotine squads? That’s why the Founders gave us a Republic, as Ben Franklin famously said - to temper the passion of factions with ways for cooler heads to prevail. Warring factions gave England a dictator-for-life, Oliver Cromwell. The Founders knew this history and worked around it accordingly. Property rights, which the socialist authors criticize, actually reinforce self-government, because property gives people freedom and independence, power they wouldn’t have if the government owned everything as in a socialist system. Property rights are best understood as a pillar of popular sovereignty.
The authors say the Constitution prevents redistribution of wealth and the creation of new social guarantees. This is just crazy talk. The authors act as if as if the New Deal, the Great Society and other redistributionist programs never happened, and that we never racked up a $21 trillion national debt as a result.
The authors criticize “the Bill of Rights’s incomplete safeguards of individual freedoms.” There’s something bone-chilling about Jacobin socialists talking about safeguarding individual freedom. They are the self-proclaimed descendants of the French Jacobins who chopped people’s heads off after so-called ‘trials’ that didn’t have any due process whatsoever, or even pretend to dispense justice. When the masters of mob rule start talking about protecting individual rights, run for the hills.
Newt Gingrich just wrote about the horrors of the French Revolution for Fox News. He referred to a book in which the author recounts a story about the French Revolution that tells you everything you need to know about Jacobin socialists: “a woman was charged with the heinous crime of having wept at the execution of her husband. She was condemned to sit several hours under the suspended blade which shed upon her, drop by drop, the blood of the deceased whose corpse was above her on the scaffold before she was released by death from her agony.” This is the intellectual pedigree of the Jacobin authors, whether they want to admit it or not.
The authors don’t want to throw out the entire Constitution like their more revolutionary comrades farther Left, just amend it. Specifically, they recommend a unicameral one-house legislature, and making it easier to amend the Constitution through national referendum. There are good reasons why the Framers didn’t give us either one.
They had the example of the unicameral Pennsylvania legislature which ping-ponged between partisan extremes after each election. This experience and others convinced the Framers that an upper house representing economically successful people was necessary to tame the passions of the bulk of the population who were seen as represented by the lower house. The Framers had the wisdom of the ages on their side on this one. Read the history of political theory from antiquity on down and you will find something called the “mixed constitution” – a government that mixes democracy with meritocracy, that is, the elements of popular representation with some kind of contribution by people who are more versed in governance than the average Jane or Joe. The history of political theory shows that you can’t have political stability without allowing both these elements to participate in government. Leave either element out and you will have nothing but fractiousness and trouble. Our two-house Congress was the Framers’ version of a mixed constitution which succeeded, unlike the French Jacobins, in ensuring political stability.
As for amending the Constitution more easily through national referendums, that would be more problematic than democratic. The Founders deliberately made it hard to amend the Constitution, so people don’t get carried away. But it’s not THAT hard. As I mentioned in a previous webinar [March 19, 2017], it only took one college student 10 years to get the 27th Amendment passed and ratified.
Let me end with three cheers for our Republic and our mixed constitution. It is because of them we have limited government, not the stronger federal government the authors want. No guillotines here.
As for the authors - Off with their heads! Figuratively speaking, of course. Unless I can gather a big enough mob.... Just kidding!
1A Religion: Colorado goes after Masterpiece baker AGAIN, this time for refusing to make special pink-and-blue transgender celebration cake.
Appointments Clause: federal judge upholds Mueller Special Counsel investigation as stemming from valid appointment, despite extraordinary powers that would seem to call for Senate confirmation
5A Due Process: 9th Circuit rules foreigners outside the U.S. are protected by the Constitution. Implications include border agents shooting across the border.
5A Due Process: 19 state Attorneys General demand constitutionally protected right to abortion for illegal immigrants
1A: federal judge orders anonymous online account information of a 2017 Charlottesville ‘Unite the Right’ organizer be given to another court; anonymity and incitement of violence are issues.
1A, Economic Freedom: federal judge strikes down Charleston’s tour guide licensing requirement as interference with right to speak for a living
1A Speech/Association: U of Iowa shuts down 38 student groups that have faith or ideology requirements for their leaders, gets sued, reverses course while litigation pending
Query: How does it discriminate if everybody gets their own group and chooses their own leaders?
1A: U.S. appeals court strikes Louisiana statute against threatening public officials as unconstitutionally overbroad; sweeps in lawful actions like threatening to sue
1A Press: de Blasio bodyguards eject reporter who tried to ask question at parade event
1A Religion: male Muslim prisoner objects to strip-search by transgender (anatomically female) guard. Intersectionality pretzel: Does transgender trump Muslim, or is it vice versa in the pantheon of rights?
1A Religion: What is a religion? Pussy Church of Modern Witchcraft gets special tax exemption from IRS as a church
2A Hypocrisy Exposed – former congressional candidate in Georgia who pushed gun control shoots her campaign treasurer dead
5A: Threat to property rights from conservation easements is growing
5A: watch short video on sustainable development’s war on private property
5A: another federal court rejects claim that competition from Uber and Lyft is a “taking” of property from taxis
Eminent Domain: South African farmer discusses impending change to constitution to allow government to expropriate land from white people without compensation to give to black people (video)
14A,8A: homeowner fights ordinance requiring her to grow grass in her yard even though she’s allergic. $180K fine, 20 yrs in prison. Precedent recognizes government’s ‘aesthetic interest’
Time to revisit second-class status of U.S. citizens of the “insular” territories (Puerto Rico, Guam)
State Constitution: victims’ rights amendment urged for Pennsylvania constitution
State Constitution: 5 former North Carolina Governors oppose amendments regarding judicial vacancies and appointments to state boards and commissions
“How Religion Defends Freedom”
Impeachment: “The Original Meaning of “High Crimes and Misdemeanors” (2 parts)
“Can a Vice President be charged with a crime while in office?” (Burr, Agnew – who’s next?)
For the constitutionalist in your life - U.S. Constitution Full Size Four Page Reproduction. $19.95
Shame! Atlanta school drops Pledge of Allegiance, adopts ‘Wolf Pack’ chant. ‘Too many kids won’t recite’ so the only answer is to give up? Hope you have a country left to have your ‘Wolf Pack’ in.
Yo, socialists! There are reasons we don’t have a unicameral legislature and the Constitution is not easy to amend. Ever think about that?
Last night, I watched Invalidated, Tea Party Patriots’ new documentary about the patent system. The documentary does a good job laying out how the Patent Trial and Appeal Board – PTAB, as it’s known - is harming U.S. inventors and allowing American ingenuity to slip away to other countries. Ironically, communist China might end up with a stronger patent protection system than the United States.
Article I, Section 8 of the U.S. Constitution guarantees patent protection, giving inventors exclusive rights to their discoveries. The documentary emphasizes that investors always ask inventors whether they have a patent and will not put money behind an invention unless they do.
Enter the America Invents Act of 2011, which established PTAB. PTAB is an administrative tribunal that has the power to invalidate patents that have already been granted, even if they have been upheld by courts and juries. As shown in the documentary, one wing of the U.S. Patent and Trademark Office awards patents after thorough examination while another wing of the USPTO – PTAB – is very much inclined to invalidate them. This works to the advantage of shady operators and big companies who use PTAB to steal inventors’ ideas and rob them of any hopes of profiting from their own inventions.
Arguments against the constitutionality of PTAB were heard in the Supreme Court this year. Jenny Beth Martin discussed the Oil States case in an editorial late last year. Unfortunately, the Court went on in April 2018 to reject certain constitutional challenges to PTAB. Relying on previous Supreme Court precedent, Justice Clarence Thomas writing for the majority reiterated that the Supreme Court considers patents a mere “public franchise” like a concession to operate a city bike-share program – thus relegating patents to second-class status instead of recognizing them as full-fledged property rights. As second-class rights, patents can be awarded and invalidated wherever Congress locates that power, and courts need not necessarily be involved, thus shooting down the separation of powers argument.
The Supreme Court said that prior cases calling patents ‘property rights’ are “best read as describing the statutory scheme that existed at that time.” Also, the Framers had to have been aware that an administrative Privy Council had the power to cancel patents in England in the 18th Century, but did not expressly exclude such administrative action in the Patent Clause in the U.S. Constitution. The Court did say that patents remain property rights for purposes of the Due Process and Takings clauses. Gee, why am I reminded of the Obamacare case where the Court said it was a tax but not a tax? Such judicial backflips suggest that the Court just wanted to reach a certain result and nothing was going to stand in its way.
The Court finished off its opinion by giving short shrift to the 7th Amendment challenge under the same reasoning. Because patents are second-class rights that can be awarded and invalidated administratively, there is no right to a jury trial even though the 7th Amendment explicitly states that the right to take your case to a jury is guaranteed in lawsuits where the amount in controversy exceeds $20. Losing a patent can cost an inventor millions, if not billions, of dollars.
So here we have the Supreme Court treating patent rights like taxi medallions, which a taxi commission can grant or take away on a whim because they’re not really property rights. That just seems wrong to me, since patent protection was explicitly written into the Constitution and taxi medallions are not. What part of “exclusive Right” in the Patent Clause does the Supreme Court not understand?
It seems wrong to Justice Neil Gorsuch, as well. He noted in his dissenting opinion in the Oil States case that the practice of administratively canceling patents in the Privacy Council had disappeared by 1746, decades before the U.S. Constitution was written. Patents may have started as “public franchises” in English law way back when, but were accorded much more respect by the time of our Founding than were ordinary “public franchises” – like government-granted monopolies to operate toll bridges. Patent holders at that time, for example, had the right to go before an independent court. After Oil States, they still do but the judgments they receive in court can be wiped out later by the administrative tribunal PTAB.
That’s just bizarre, which suggests to me another constitutional challenge against PTAB which has yet to be made – if patents are still property rights for due process purposes as Justice Thomas wrote, how can they be taken away by an administrative agency after a court has already upheld them? How is that not a denial of due process of law? It might not be double jeopardy, because it’s not a criminal matter, but it’s every bit as unfair as trying a criminal defendant twice for the same crime.
Folks, we have another administrative monster on our hands, every bit as bad as IPAB under Obamacare – the decisions of which, purportedly, Congress could not reverse – and the CFPB (the Consumer Financial Protection Bureau) which was set up with one person at the helm not subject to removal by the President. Where does Congress come up with this stuff?
The Supreme Court won’t be persuaded to elevate the status of patent rights any time soon, so the PTAB mess cries out for a legislative fix. Representative Thomas Massie, Republican of Kentucky, has introduced a bill to repeal PTAB. Massie and Jenny Beth Martin discussed the bill and other legislative fixes in a joint editorial in July 2018.
I highly recommend Tea Party Patriots’ documentary. It’s obvious something needs to be done about PTAB. Our prosperity and economic freedom depend on it.
14A Presumption of Innocence – Albuquerque’s civil asset forfeiture program declared unconstitutional; gov’t attorneys caught on tape calling it a “gold mine”
2A: NRA sues NY Governor for denying First Amendment speech rights (Query: does urging banks not to deal w/NRA burden fundamental rights? ‘Burden’ argument often made in abortion cases.)
5A,9A: Supreme Court greenlights climate change case, but warns not to let it get out of hand. Constitutional right to a “sustainable environment”? Sure.
14A Due Process: federal appeals court OKs challenge to California’s felony murder statute; “inherently dangerous felony” unconstitutionally vague? (argument helped by Gorsuch opinion in 2018 immigration case)
1A Religion: motion to dismiss in Detroit female genital mutilation case to be heard next month.
1A: left-wing professors’ association starts resistance group to attack state laws guaranteeing free speech on campus
1A: Liberty High School in Oregon gives up fight against student it barred from wearing Trump t-shirt; pays $25,000 and apologizes
Dems circulating authoritarian proposals to regulate the Internet under the guise of fighting Russian interference.
Shame! Sen. Chris Murphy (D-CT) calls for social media to ban all sites ‘spreading hate and lies’ because ‘survival of democracy’ depends on it. No, our Republic depends on the survival of free speech.
SPLC amps up war on free speech, condemns Constitution and free speech that inspires people, for example, to shoot up the Family Research Council and attempt to kill Congresmen on a baseball field. Oops! #SweepYourOwnDoorstep
1A Free Press: courts generally uphold videotaping of police officers in public, but what about haranguing a mail carrier?
1A Free Press: New Jersey to spend millions to prop up small struggling newspapers; bad move. #ShadesOfPravda
1A: 28 states ask Supreme Court to uphold 40-foot cross honoring World War I vets (would they feel the same way if it were a 40-foot star-and-crescent?)
2A: “Building a Church Safety/Security Team: Keeping Your People Safe and Secure in 2018” WATCH BELOW
4A: Michigan Supreme Court orders trial court to determine whether practice of photographing and fingerprinting people ‘as needed’ without probable cause violates the Fourth Amendment.
Eminent Domain: Government pushes ahead with plans to change constitution to allow seizure of land from white people without compensation. Then I realized I was trapped in one of Justice Ginsberg’s dreams.
9A: This might be the first rally for the Ninth Amendment in history, but El Paso demonstrators are sadly mistaken in thinking it guarantees their “right to be happy”
10A: why is it the party out of power always discovers the virtues of federalism? California agitating for its right to impose stricter auto emission standards than the feds (thereby dictating what the rest of the country will drive?)
13A: whether banning hate crimes is a good idea or not, the Thirteenth Amendment doesn’t get you there, brief argues. 13A confers no power to uproot ‘incidents’ of slavery.
14A Equal Protection: article argues against Obama-era claim that 1965 regs give Department of Education all-purpose authority to go after all school actions having disparate impact on minorities
14A: U.S. court orders New Orleans to give criminal defendants a ‘neutral forum’ to prove they can’t pay fines or fees before throwing them in jail for unpaid amounts
14A Due Process: U.S. appeals court declares Louisiana statute banning the threatening of public employees with lawsuits or complaints unconstitutionally overbroad
Article II: lawsuit alleges Trump’s actions on Obamacare amount to a failure to faithfully execute the laws
Chevron Deference: Supreme Court is asked to take case to rein in judicial deference granted to agencies to interpret statutes; FCC changed its mind 3 times as to what a federal law means
Patent Trial and Appeal Board (PTAB) seen as enabling big companies to steal the work of inventors; one problem is looser rules than in court; abolition and reforms proposed
WATCH BELOW - Short video explains the problems with federal trial courts issuing nationwide injunctions that go way beyond the parties to a case; dueling injunctions one such problem
U.S. appeals court agrees with blocking Trump from cutting sanctuary city funding in California, but knocks down nationwide injunction
State Constitution / Economic Freedom: doctor sues to overturn North Carolina’s Certificate of Need law as unconstitutional monopoly interfering with his ability to offer MRIs for less
Rule of Law: “Anarchy Breaks Out in Portland, With the Mayor’s Blessing - A vicious mob targeted the ICE office and even a food cart. The police followed orders to do nothing.”
14A Equal Protection: Portland mayor denies he violated Constitution when city failed to respond to 911 calls from ICE agents during protest
Federal government did not assert control over immigration policy until the late 19th Century, and proceeded on thin constitutional authority
“Former Prosecutor KrisAnne Hall Warns of Constitutional Ignorance”
NY reverses course, restores U.S. flagpoles to highways after veterans complain
In May, Illinois became the 37th state to ratify the Equal Rights Amendment. Yes, the Equal Rights Amendment, which Congress sent to the states for ratification in 1972, is still alive and kickin’. The ERA’s supporters maintain that only one more state is needed to fulfill the Article V requirement for ratification by three-fourths of the several States, but that’s far from clear.
The ERA has split the feminist movement. Some believe that the Constitution does not currently adequately protect women’s rights. Other feminists oppose the ERA, preferring to keep preferential treatment for women in such things as, alimony, affirmative action preferences for women, set-asides for women-owned businesses in government contracting, and Social Security widow’s benefits. Women’s groups even opposed a ‘mini-ERA’ for these reasons in California in the 1990s. This camp also does not want to see women become subject to the military draft. It should be noted that an Equal Rights Amendment was first proposed in 1921 and was opposed by the early Progressives and Eleanor Roosevelt because it would negate special protections for women in labor law regarding working conditions and hours.
Opponents of the ERA, meanwhile, argue that the Constitution already adequately protects women’s rights, citing the 14th Amendment equal protection clause and the fact that such constitutional rights as habeas corpus make no distinction between men and women in their application. Opponents also worry that the ERA, if adopted, could render every pro-life law on the books unconstitutional including parental consent for teen abortion and the Hyde Amendment which prohibits federal funding of abortion.
It’s not clear that ratification by a 38th state would put the ERA over the top, for several reasons. First, Congress set a deadline for the states to ratify the ERA and not enough states voted it up in the time allotted. Congress even extended the deadline and the ERA still fell short of the number of states required. Some argue that the failure to get enough states in the time periods prescribed is a fatal defect. In a 1921 case [Dillon v. Gloss], the Supreme Court upheld the constitutionality of a congressional time limit for ratification of a pending constitutional amendment. [Chemerinsky, Constitutional Law – Principles and Policies, 4th Ed. 2011, at p. 148]. The counter-argument is the fact that the 27th Amendment dealing with Congressional pay raises was first proposed in 1789 but not ratified until 1992.
Second, five states have voted to rescind their earlier ratifications of the ERA and it is disputed as to whether not these disavowals have any legal effect. The legality of the Congress’ extension of time and the ability of states to rescind went to the Supreme Court in a 1982 case [National Organization of Women v. Idaho], but the Court dismissed it as moot because the deadline had expired.
Third, there remains the issue that was litigated in the 1982 case where the lower court had found that Congress’ extension of time was unconstitutional because it was passed by majority vote, not two-thirds of both houses. [Chemerinsky, p. 149].
Things could get very messy if a 38th state ratifies the ERA. This could easily happen. The measure is actively being pushed in Florida, Virginia, North Carolina, and Arizona. If a 38th state ratifies, Congress would still have to declare the ERA part of the Constitution, but Congress could balk on the grounds that its two deadlines have already passed. If a court rules that states are not able to rescind their ratifications, other dormant proposed Constitutional amendments would come to life, including proposals having to do with D.C. voting rights, child labor, and titles of nobility.
One or more of these questions could end up in the Supreme Court which has dodged such questions half the time throughout our history by invoking the political questions doctrine which holds that such questions should be resolved by the political branches of government, not the courts. [See also Chemerinsky at p. 148]
The situation has the potential for high drama, so stay tuned. It may sound bad, but the country has been through worse. The 14th Amendment was deemed adopted even though it would have failed without counting the votes of the Southern states that were coerced into ratifying it on pain of being denied readmission to the Union and also the votes of two states that had rescinded their approval [id.] I guess nothing’s perfect in this world, not even the Rule of Law.
San Jose officials fail to knock out suit involving hundreds of Trump supporters (Constitution news round-up)
1A,11A: San Jose officials fail to knock out suit involving hundreds of Trump supporters beaten by mob after city issued police stand-down order
1A,2A: federal judge temporarily blocks posting of 3D gun blueprints on the Internet
Separation of Powers: Trump admin suffers defeats in Chicago and California sanctuary cities cases; executive conditions on appropriated grant money unconstitutional
Emoluments: federal judge rules against Trump in Emoluments Clauses case; foreign officials paying to stay at Trump hotel is unconstitutional under court’s theory
State Constitution: referendum to split up California removed from November ballot; partition can’t be done by mere statute
1A: Sessions says DOJ ‘not slowing down’ in pursuit of religious liberty, cites protection of mosques
1A: Trump Justice Department continues to advocate for free speech on campus
1A: San Antonio firefighters sue city over free speech zones which, they say, frustrate their right to gather signatures for petition
1A: National Abortion Federation drops some claims in tactical move to speed up permanent gag order against baby parts videographer David Daleiden
1A: abortion protesters defeat NY Attorney General’s attempt to silence them; judge finds state witnesses exaggerated claims, destroyed evidence, set up fake Facebook account to spy on defendants
Free Speech: “'Trigger warnings' may undermine 'emotional resilience,' Harvard study finds”
1A: Oberlin College tried to obtain conservative website’s communications with journalistic sources in defamation case
1A: U.S. appeals court rules against Christmas ads on city buses; declining all ads on particular subject matter does not suppress any one viewpoint; appeal to Supreme Court likely.
2A: U.S. court rules Hawaii may not limit open carry licenses to persons who are security guards
2A: almost 500 (so far) forced to surrender firearms under Florida’s gun confiscation program adopted after Parkland shooting. #HardFactsMakeBadLaw
14A: federal appellate court ruling on Alabama minimum wage law shows danger of inferring discriminatory impact and intent on sliver of evidence and declaring ‘once a sinner, always a sinner’
14A: Further incidents fuel emerging issue of political bias in public accommodations (black conservatives were denied Uber service; government-run county fair in UK kicks out pro-life group)
14A: Reagan official criticizes op-ed against birthright citizenship, arguing it misinterprets “under the jurisdiction thereof”. Editorialist responds
Nation celebrates 150th anniversary of 14th Amendment, but some act like it’s still 1861
Shame! Ruth Bader Ginsburg film says word ‘freedom’ not in the Constitution, but “freedom of speech” right there in the First Amendment.
Shame! Maxine Waters supporters use First Amendment rights to stomp, burn U.S. flag, trash America. (and you’re going to replace the First Amendment with ... what, exactly?)
Separation of Powers: U.S. appeals court finds Federal Housing Finance Agency structure unconstitutional - “headed by a single Director removable only for cause, does not depend on congressional appropriations, and evades meaningful judicial review.”
Art 1 Sec 8 Naturalization – in preliminary ruling, U.S. judge declines to strip citizenship from Pakistani-born Al Qaeda Brooklyn Bridge plotter
1A: In win for free speech, IRS exempts charities from disclosure of donor names and addresses
1A: federal appeals court rules most injunctions against libel are unconstitutional prior restraints; law unsettled, Supreme Court will have to weigh in
1A/4A: civil libertarians questioning NYPD’s combing through social media tweets to use in arrests and gang takedowns
1A Religion: federal appeals court permanently blocks trial judge’s order granting abortion chain’s demands for private communications of non-party Texas bishops
1A: teen who told her boyfriend to kill himself claims it was free speech
Free Speech: U of Minnesota considers expelling students for failing to use preferred transgender pronouns. (Phase 1: make your ideas ubiquitous. Phase 2: shut everyone else down and crack their heads.) #FreeYourInnerFascist
Free Speech: Use the harm of ‘offensive’ speech to curb free speech? Think again: “Nazis with the freedom to speak can cause less harm than Nazis with the power to regulate speech.”
1A: a ‘right to be forgotten’ – when it results in orders to media to delete archived stories - is inconsistent with the First Amendment
2A: federal appeals court upholds preliminary injunction against California’s ban on high capacity magazines
2A: gun groups sue California for botching online gun registration system and putting people who attempted to comply at risk of arrest
2A: vet fights warrantless seizure of his registered guns and wins
2A: Yes, they ARE coming for your guns. NY Dem candidate laments she can’t come out as a gun-grabber until after the election
2A: if illegal alien girls stepping one toe over the border have due process rights to abortions, don’t they also have the right to bear arms? #CarefulWhatYouWishFor
4A: mass strip-search of 22 middle-school girls unconstitutional, federal appeals court rules
5A Eminent Domain: Kelo one of the worst decisions ever; will Kavanaugh stand up for property rights?
8A: U.S. appeals court rules there is no constitutional right to cash bail in lieu of non-monetary conditions for pre-trial release
10A: activists gathering signatures for ballot initiative to reverse California immigration policies; stunning number of signatures gathered in Oregon for anti-sanctuary measure
14A: New Hampshire Governor signs voter residency requirement into law after state high court advises it’s constitutional
14A Equal Protection: unprecedented and confusing - U.S. judge finds Jews are a ‘race’ entitled to civil rights protection on the basis of race. My question: Are Moroccan Muslims the same ‘race’ as Indonesian Muslims? CAIR wants you to think they are.
14A: another case of political bias in public accommodations (Uber) – is this what we want?
ERAUSANOW TITLEIX @ERAUSANOW Jul 12
Replying to @LiberatoUS
You are sadly mistaken
Liberato.US @LiberatoUS Jul 12
Amendments: the Constitution already protects women; Equal Rights Amendment is useless and dangerous
7/18 response: Well, that was clear as mud. Not well argued. BTW: what happened to your website (ratifyera.org)? Did you lose your funding?
Oshtur @Vishanti Jul 12
Replying to @LiberatoUS
No, all it does is say there must be religious neutrality in applying the law. A complaining parent should be treated the same whether their complaint originates from religion or secular prudery, that’s all.
Liberato.US @LiberatoUS Jul 12
Using Masterpiece to full advantage: constrains public agency treatment of religious belief; could block teaching radical sex ed agenda to schoolchildren http://www.missionamerica.com/article/free-school-sex-ed-slaves-after-cakeshop-decision/ …
7/18 response: If that were true, Justice Kennedy would not have gone on at length about public officials’ hostility towards religion being fair game. Good luck confining Masterpiece to your overly-narrow reading.
14A Due Process: NY court reminds everyone that student disciplinary proceedings are not kangaroo courts and do require due process
Appointments clause: U.S. judge says members of Puerto Rico financial oversight board constitutionally appointed
State Constitution: class action alleges student fees contravene Idaho guarantee of free public education
14A birthright citizenship seen as negating threat blacks would be forcibly removed, thus transforming the country
“Happy 150th Birthday, 14th Amendment” – hear the story of its origins, drafting, and ratification
New short video from Potomac Tea Party: Citizens, Give Up Your Guns! - Why We Have the Second Amendment
Travel Ban? Sanctuary Cities? Everything You Always Wanted to Know about Immigration and the Constitution (radio archive)
10A: preliminary ruling knocks down most of Trump effort against California sanctuary state laws, but employers may still cooperate with ICE
Art I, Sec 2 / 14A: lawsuit objecting to citizenship question on census allowed to proceed
+ It’s all about the money.
14A Due Process: suit against Trump campaign and Roger Stone for DNC email hack dismissed for lack of personal jurisdiction
Janus fall-out: Supreme Court removes bar against class actions against unions for recovery of forced dues
Art I, Sec 8: measure offered to reclaim congressional authority over tariffs
1A/14A: Wisconsin Supreme Court rules Marquette U breached employment contract by suspending prof for blog post
1A free exercise: Supreme Court orders another look at qualified immunity case brought by woman police ordered to stop praying in her own home
1A: Supreme Court takes retaliatory arrest case – is it retaliatory if probable cause to arrest exists, but arrest likely would not have happened without constitutionally protected speech?
Chuck Schumer Asks If Mosques Will Be Monitored For “Hate Speech” - Gets Threatened With “Hate Speech” Prosecution For Asking. Then I woke up and realized I live in a country with free speech.
FEC itching to further regulate political speech on the Internet; clamp down on viewpoints they don’t like
Free Speech: “Refusal to Use Preferred Gender Pronouns Costs British Doctor His Job” #FreeYourInnerFascist
NYT: Conservatives have too much free speech. It’s just not fair. #FreeSpeechForMeButNotForThee
The Left is pushing to make free speech a collective right that is the sole property of the government and certain privileged demographic groups, not individuals
1A Establishment of Religion – group files complaint over Bible in POW display at Okinawa naval hospital
1A Establishment of Religion – Christian group sues Boston over refusal to allow Christian flag at City Hall during nearby event
2A: “26 Illinois counties have passed ‘gun sanctuary’ resolutions.”
2A: “Republican Gov. Charlie Baker signed a bill on Tuesday allowing for temporary gun confiscation without any due process in Massachusetts”
2A: Here’s how many dictators took over the U.S. today – ZERO. Thank you, Framers, for the Second Amendment! Rebutting mindless CBC story here -
2A: UN Programme of Action on small arms is an assault weapon aimed at the U.S. Second Amendment
4A: conservatives on the Supreme Court continue to misapply the 4th Amendment, failing to rein in administrative subpoenas issued without probable cause.
8A: Colorado Supreme Court case presents question whether Eighth Amendment (via incorporation doctrine) protects corporations against excessive fines by a state
14A Equal Protection: it’s time to evaluate effects of disparate impact theory (“why does the agency believe disparate impact liability will survive strict scrutiny? What's the compelling interest? [Is] it narrowly tailored to achieve that purpose?”
14A Equal Protection: group asks for full-Third Circuit review of order opening Pennsylvania school’s restrooms and locker rooms to transgender students
14A Equal Protection: Trump admin junks Obama guidance promoting race to achieve diversity in college admissions
Equal Protection – #WalkAway guy was denied service; another case of political bias in public accommodations. Apparently legal in New York. #NewYorkDiscriminates
14A Due Process: federal judge rules there is no fundamental right to learn to read and write in suit against Michigan officials for failing Detroit schools
14A Due Process: in victory for Planned Parenthood, preliminary injunction blocks as undue burden Indiana law requiring info on patients with abortion complications
Deference: Mississippi Supreme Court scuttles deference to state administrative agencies
Appointments Clause: Russian firm accused of election meddling moves to dismiss case on grounds Mueller unlawfully appointed
State Constitutions: “Hunting and fishing constitutional amendment passes, heads to NC voters”
Article V Convention: lawsuit against 2017 Missouri Convention of States resolution dismissed (N.B. – COS hasn’t gotten anywhere this year)
Amendments: ‘evolving Constitution’ jurisprudence is stunting the amendment process
Amendments: the Constitution already protects women; Equal Rights Amendment is useless and dangerous
Using Masterpiece to full advantage: constrains public agency treatment of religious belief; could block teaching radical sex ed agenda to schoolchildren
Art IV Sec 3: meaning of constitutional provision on formation of states could be tested if initiative to break California into 3 pieces passes
The two faces of Justice Sutherland’s jurisprudence: blessed limited government in domestic affairs, but enabled imperial presidency in foreign affairs
Essay on the meaning of the Declaration of Independence – pegs the natural rights foundation of the American Idea
Worth more than a Monet! “10 fascinating facts about the Declaration of Independence”
Country music group slams Facebook for censoring patriotic song ‘I Stand for the Flag’
Shame! Extreme Left St. Paul Mayor cancels July 4th fireworks because they ‘cost too much’, but private donations would have covered the cost
Tonight, I have an update for you on the Trump administration’s lawsuit against California’s state sanctuary laws. This one, so far, is going as observers expected – in other words, not well. A federal judge on July 5, 2018 refused to grant the Justice Department a preliminary injunction against California’s statute prohibiting state and local law enforcement officials from sharing information about criminal aliens in their custody with federal officials. The judge also declined to grant a preliminary injunction against the California law allowing state inspections of local and privately run jails, which depends on getting access to federal records about prisoners. The judge did, however, block parts of a third law, including provisions that tried to ban private employers from cooperating with federal immigration officials on immigration raids and other matters. So, as observers expected, the strongest part of the Justice Department’s case was upheld, at least for now. This is all preliminary, not final, and the case goes forward. The judge was sympathetic to the anti-commandeering argument which prevents the federal government from forcing state and local officials to help enforce federal laws. The judge said “refusing to help is not the same as impeding” and that standing aside is not the same as standing in the way.
In May 2018, the Trump administration announced a “zero tolerance” policy under which all adults entering the United States illegally would be subject to criminal prosecution and all minor children would be separated from their parents. In June, in response to public pressure, the President issued an executive order ending the practice of separating families. But the order did not address the reunification of more than 2,000 children already separated from their parents. Prior to the executive order, a federal judge in San Diego found that the illegal aliens entering the United States under the circumstances presented have “substantive due process rights to family integrity” under the 5th Amendment to the U.S. Constitution. After the executive order, the judge issued a preliminary injunction giving the administration up to 30 days to reunite all children affected by the “zero tolerance” policy with their parents.
The Trump administration had argued unsuccessfully that families separated at the border when the parents claim asylum have no constitutional right to remain together. But in his first ruling, the judge talked about the “sacred bond between parent and child” and said he found the practice of family separation inhumane. Observers have said there is a due process “right of family integrity” dating from Supreme Court cases in the early 20th Century.
The Flores agreement that has gotten so much publicity lately, among other things, stipulates that children coming across the border illegally accompanied by their parents have to be released within 20 days. The Trump administration said the Flores agreement is the reason it could not keep families together – the parents are detained indefinitely but the kids are supposed to be placed in 20 days.
Last I heard, the Trump administration is looking for space on military bases to detain families together. The administration says this would satisfy both the Flores agreement and the San Diego judge’s order. The judge in San Diego recently said “nothing in his order takes away the government’s discretion to either detain or release parents in immigration custody; keeping families together is the key.”
What’s odd is that the Flores case – which gave rise to the Flores agreement – specifically found there is NO due process right for children of parents detained for deportation hearings to be placed with their parents, close relatives, or legal guardians. So it’s conceivable that higher courts could reverse the district court judge’s findings, but I personally doubt the government will take the case that far.
14A Equal Protection: Supreme Court upholds Trump travel ban, rejects claim of anti-Muslim bias
National Injunctions: Supreme Court refuses to rule on nationwide injunctions in travel ban case, but Justice Thomas calls them ‘historically dubious’
National Injunctions: federal appeals court panel confines sanctuary city grants injunction to Chicago; full court to hear case
National Injunctions: the law is all over the lot, but the Gill case is glide path to ending the practice
Commerce Clause: Supreme Court OKs state sales taxes on online purchases
4A: Supreme Court rules police must obtain a warrant to search cell-site location data (Carpenter)
1A: Supreme Court rules public sector union employees can no longer be compelled to pay union dues related to cost of collective bargaining (Janus)
1A: flurry of class actions already filed by public sector employees to recover mandatory union dues paid against their will
1A: Supreme Court rules pro-life pregnancy centers cannot be compelled to provide free advertising for the abortion industry
Separation of Powers: federal judge rules structure of CFPB unconstitutional (independent agency with a single director); conflicting decisions mean Supreme Court will probably take up the issue
1A Religion: federal appeals court blocks abortion chain’s demands for private communications of Texas bishops
1A: Supreme Court sends Christian florist case back to lower court for reassessment in light of Masterpiece decision
“Killing Free Speech” video shows what Antifa, extremist Muslim groups, and Canadian government officials have in common: The truth is hate speech - shut it down!
Islamist censorship (now playing out in the Michigan Governor’s race) is incompatible with the First Amendment, expert warns
“The ACLU is no longer a free speech organization.” Supports campaign finance restrictions, abortion clinic speech buffer zones, etc.
Public forum, state action, and adoption of foreign speech codes are theories to watch as law forms around speech issues on social media
1A Establishment of Religion: suit by New Jersey mom against Muslim proselytization by public schools survives motion to dismiss
2A: New Jersey Governor wants 2,400% tax increase on guns. Time to dust off the ‘undue burden’ arguments from abortion rights cases.
2A: gun rights group fighting New Jersey’s confiscation of 10-round magazines
2A: sorry, data from other countries does not support assertion that gun control laws reduce homicide rates
2A: UN up to its old tricks, pushing international gun control
Property Rights: activist gaining ground against UN-directed encroachment, e.g., received invitation to speak to state landlord’s group
5A Due Process: consenting to a separate trial negates double jeopardy claim, Supreme Court rules
5A: Dallas officials skirt eminent domain, rezone property and order shop owner to move without compensation. Case on appeal. City would prefer Starbucks which just closed 150 stores. Very far-sighted, Dallas! #RememberKelo
8A: multiple life sentences for D.C. sniper Lee Boyd Malvo must be reevaluated in light of later Supreme Court cases on sentencing juveniles
14A Equal Protection: federal district court panel strikes Virginia legislative districts for racial gerrymandering, orders redistricting plan
14A Equal Protection: availability of single-occupancy facilities overrides student objections to transgenders in bathrooms and locker rooms, federal appeals court rules
Equal Protection: affirmative action – which was supposed to be temporary – has outlived its usefulness. Sufficient classroom diversity could now be achieved solely with merit-based admissions.
Political bias in public accommodations is a growing problem, as Chicago bar bans MAGA hats .#RedHen
Deference: agency interpretation not entitled to deference when clearly against the federal statute, Supreme Court rules in deportation case
Appointments Clause: federal judge denies constitutional challenge to Robert Mueller appointment
Appointments Clause: Supreme Court holds that SEC administrative law judges should be appointed by someone with more authority than SEC staffers
State Constitutions: Arkansas may proceed with medical marijuana program, state Supreme Court rules; state’s process held to interfere with voter-approved constitutional amendment
State Constitutions: Massachusetts court keeps millionaire’s tax amendment off November ballot because it was the product of ‘logrolling’ – pairing unrelated popular proposals with unpopular proposals
Article V Convention: Left-wing PAC raising money to unseat anti-convention legislators. (Also, apparently, advocates are trying to sneak pro-convention planks into state GOP platforms, continuing pattern of sneakiness)
Progressive movement has perverted the Constitution, transferring power from republican self-government to an untouchable Supreme Court