On Friday [Oct. 19th], the Supreme Court brought a temporary halt to the astounding climate kids case that was set to begin trial at the end of the month in federal court in Oregon. I say ‘astounding’ because the claims are absurd and the requests for relief are gargantuan.
In 2015, a group of 21 young people ages 10 to 21 filed suit against the federal government asserting a constitutional right to a sustainable environment. They allege that the government knew all about climate change but continued to promote the use of fossil fuels for another 50 years. This is not some random group of kids. They were organized by an environmental group, as you might suspect, and are proceeding under the stewardship of James Hansen, the former NASA zealot who has a reputation for exaggerating global warming and turning science into ideology. So here we have a phony made-up case by the Left and a left-wing trial judge more than willing to play along.
Where does a constitutional right to a sustainable environment come from, you might ask? Beats me. Earlier this month, the trial judge dismissed the plaintiffs’ Ninth Amendment claim. The Ninth Amendment to the U.S. Constitution states that all unenumerated rights are retained by the people. So far, courts have not been willing to treat the Ninth as a fountain of rights and have not declared any new rights under it. The closest we’ve come is Justice Goldberg’s concurring opinion in Griswold v. Connecticut 50-plus years ago citing the Ninth in support of a constitutional right to marital privacy.
More on the Ninth another day. But who needs the Ninth when you can use the Due Process clause of the 5th and 14th Amendments to declare new rights? Like when Justice Kennedy declared a fundamental right to same-sex marriage in the Obergefell case. Folks, it’s not the rule of law when courts can make stuff up and shove it down our throats. But this is exactly what the trial judge in the climate kids case may end up doing: declare a never-before-seen fundamental right to a sustainable environment and impose remedies one observer called “the complete restructuring of the U.S. economy.” The kids want the government to phase out all fossil fuels and reduce carbon dioxide in the atmosphere so that we can return to, what in their view will be, a stable environment.
To buy all this, not only do you have to believe in man-made climate change, you have to believe that it’s appropriate for courts to make national policy. The plaintiffs are requesting enormous changes that would completely upend national environmental and energy policy. Forget the elected representatives of the people, we’ll just run large sectors of the economy out of a single courtroom in Oregon, how’s that sound? And this, from the Left, which is always nattering on about ‘democracy’.
It’s not clear what’s going to happen. After the Supreme Court’s order on Friday [Oct. 19th], discovery and the trial are halted pending further briefing. The plaintiffs’ response to the government’s pleadings is due on Wednesday [Oct.24th]. Whether and when the trial will take place is up in the air, and we don’t know for how long. The Supreme Court has already greenlighted this case once, so it’s not immediately apparent what they’re driving at now. If the Supreme Court had an objection to the declaration of a fundamental right to a sustainable environment or to the broad sweeping remedies requested, they could have put a stop to this insanity the first time around. Maybe the Court will finally accept the government’s argument that the young plaintiffs lack standing because they can’t show any particularized injury from governmental policy any different from that felt by anyone else. Who knows? Stay tuned.
Trump snubs Feinstein and Harris, nominates 3 conservatives to ‘nutty’ 9th Circuit (Constitution news)
Trump snubs Feinstein and Harris, nominates 3 conservatives to ‘nutty’ 9th Circuit
1A: Atlanta settles with fire chief it fired for his religious beliefs for $1.2 million – “big win for the First Amendment rights of all Americans”
North Dakota voter ID law upheld by Supreme Court, adding to string of cases saying requiring ID is not ‘voter suppression’
1A: PILF cross-sues Virginia Department of Elections in case alleging PILF had intimidated voters by publishing noncitizen voting info; PILF argues it could reasonably rely on accuracy of government records
5A: Climate kids case to proceed to trial on due process grounds; Ninth Amendment claim dismissed. Judge believes climate change issue should be decided in court, not by the elected branches of government.
1A: Violent leftist mobs are not ‘protesters’; the damage they inflict is NOT constitutionally protected free speech or assembly
2A: Another reason to carry a gun: Parkland deputy argues he had no legal duty to stop the massacre.
4A: Part-time doctor who does not own the clinic where he works cannot assert a Fourth Amendment claim to bar search of the medical records of his patients
5A: amicus brief argues government should have to show by clear and convincing evidence that the person knows the password before the person can be compelled to decrypt computer records
Economic Freedom: Supreme Court knocks down 8th Circuit ruling which upheld Missouri licensing law requiring 1,500 hours of training for hair braiding
State Constitution: West Virginia in constitutional crisis; stand-ins for impeached supreme court rule that impeachment trial would be unconstitutional
State Constitution: Washington Supreme Court holds state’s death penalty unconstitutional (again); arbitrary and racially biased since black defendants more than 4 times more likely to be sentenced to death
Prominent historian rejects notion Constitution’s basic structure framed by issue of slavery; finds tension between large and small states much more salient
Justice Scalia’s finest opinion? Dissent in Morrison v. Olson continues to inform legal debates on separation of powers and unitary executive
The costs of the administrative state: unnecessary regulation has imposed major costs on the US economy, the separation of powers has been compromised, and erosion of the role of Congress threatens democracy.
Justice Kavanaugh likely to strengthen religious liberty, the right to bear arms, and limits on congressional and executive power.
Post-Kavanaugh: “It’s time to act like Americans once again.”
Shame! Dem Arizona Senate candidate on record as saying its fine for Americans to fight for the Taliban, America’s enemy.
CNN host Don Lemon showed his ignorance about the Constitution on national television this last week. He said it loud and he said it proud. The discussion was about the right to protest, specifically about an angry mob running Ted Cruz and his wife out of a D.C. restaurant. Lemon told his guest to “shut up” so he could pontificate about free speech:
Whenever and wherever you want. Don Lemon is flat-out wrong, as a matter of constitutional law. Free speech is not an absolute right. There are a number of well-established exceptions to the First Amendment right to free speech. You can’t yell ‘fire’ in a crowded theater (or in a crowded TV studio, for that matter). You can’t tell the enemy when our troop ships are set to leave. You don’t get to utter fighting words with impunity. You don’t have the right to tell falsehoods and ruin someone’s reputation – that’s called slander. You don’t have the right to lie under oath – that’s perjury and it’s a felony. You don’t have the right to incite violence or imminent lawless action. You don’t get to break windows at GOP offices as part of your right to protest – that’s a crime.
And you certainly don’t have the right to protest “whenever and wherever you want.” There are time, place and manner restraints that limit your right to protest. Every Tea Partier knows you have to obtain a permit to have a big demonstration on the National Mall. Every Tea Partier knows there are local ordinances that limit your right to protest. In my area, groups larger than 25 people have to get a permit to demonstrate. Smaller groups can’t block public sidewalks, you have to keep moving. You can’t protest on private property, like shopping malls or grocery store parking lots. Or in a restaurant, if the owner won’t allow it. The D.C. subway has rules, too. You can’t demonstrate inside stations, it’s too dangerous. You can’t block the entrance; you have to stay 15 feet away from it.
But Don Lemon has announced a principle: the absolute right to protest wherever and whenever you want. Let’s have a little fun with that, shall we?
I get to protest anywhere and whenever I want, right? I guess that means Don Lemon’s living room at 2 o’clock in the morning. Or a Democratic Socialists of America chapter meeting, or a Sunday service at an A.M.E church when people are trying to pray. Not just one Sunday, but every Sunday.
Now let’s talk about his own show. Don Lemon has a history of shutting off his guests’ microphones when he doesn’t like what they have to say. He did it to radio host John Fredericks and he did it to former Trump aide Jason Miller. In Miller’s case, Lemon specifically told him that being on CNN is a privilege, not a right. Apparently, consistency is not a requirement for being a CNN host. And they weren’t the only ones Don Lemon has silenced. He should be checked for Nazi tendencies.
But he announced a principle that I have an absolute right to protest wherever and whenever I please. I have half a mind to march into CNN’s studios, storm on to Don Lemon’s set with a few hundred of my closest friends and protest his history of antipathy towards free expression. Cut people off, how dare you.
Shame on Don Lemon for supporting mobs. Shame on him for invoking the Constitution when he clearly doesn’t know what he’s talking about. And shame on him also for thinking people only have a right to speak when it’s something he agrees with.
Trump administration loses another sanctuary city grants case; executive cannot place conditions on federal grants (separation of powers) or commander state employees to enforce federal law (10A)
2A: Misdemeanor DUI not enough to justify life-long gun ban; federal judge restores gun rights to nonviolent offender
14A: New California law requires certain corporations to meet quota of women on their boards; companies lost value under similar law in Norway; wrinkle here is gender identity, not biological sex
Returning to Congressional rather than judicial government will lower the stakes and avoid future bitter nomination fights.
Free expression: Leaked Google document - tech firms have lost their free speech culture and moved toward censorship
1A: gaming company personnel cannot be prohibited from making political contributions on the grounds that a legal industry is corrupt, federal judge in Pennsylvania rules
1A Religion: St. Louis can’t compel religious groups “to employ or house individuals who advocate for or perform abortions” contrary to their beliefs, federal judge rules
2A: CDC admits its gun injury data is unreliable, publishes it anyway; downward trend found by other researchers casts doubt CDC estimates
Eminent Domain: Supreme Court hears arguments in case testing precedent that takings plaintiffs must exhaust state remedies before filing in federal court
14A Discrimination: Study shows ‘Ban the Box’ laws protecting ex-offenders harm the chances of young black men getting a job
Dormant Commerce Clause: Wisconsin butter-grading statute is burdensome on Amish small-batch producers, but OK because it does not discriminate against out-of-state products, 7th Circuit rules
Dem Senator filed for injunction to block Kavanaugh vote; argued that failure to provide documents related to nominee’s tenure in the Bush administration hampered Senator’s duty to advise and consent
Be inspired: “Life-Long Cubs Fan With Down Syndrome Fulfills His Dream to Sing National Anthem”
Brett Kavanaugh is not a rapist; he’s a witch! You didn’t know that? I hereby accuse Brett Kavanaugh of Conjuration, Witchcraft, and dealing with Evil and Wicked Spirits.
He shall be tried in secret. Hearsay will be admissible. All accusations, no matter how unreliable – like his sexual encounters with demons - shall be used against him. He will not be allowed to defend himself. [American Criminal Courts: Legal Process and Social Context by Casey Welch, John Randolph Fuller] And there will be no presumption of innocence; In fact, he will be presumed guilty unless he can prove he is innocent. [Just a Family History by Glenn L. Bower, p. 206]
We heard a lot about the presumption of innocence during the Kavanaugh confirmation process. Tonight, I’ll tell you the story of the presumption of innocence and what can happen without it.
The history starts with the ancient Babylonian Code of Hammurabi which put the burden of proof on the accuser. The presumption of innocence was a feature of Roman criminal law. Today, the 5th and 14th Amendment Due Process clauses, by Supreme Court interpretation [Coffin v. United States, 156 U.S. 432 (1895)], protect the presumption of innocence. In our system, unlike the Salem witch trials, you are innocent until proven guilty.
The absence of the presumption of innocence is associated with some of the worst events in human history. In the court of the Spanish inquisition, for example, the accused were presumed guilty and it was up to them to prove themselves innocent. [Equity and Law by María José Falcón y Tella, p. 228] The Inquisition also tortured confessions out of religious and ideological opponents of the Inquisitors.
The trials of the French Revolution, if you can call them that, were patterned after the Inquisition – no jury, no compulsory process for defendant’s witnesses, and no presumption of innocence. [A Manual of American Ideas by Caspar T. Hopkins, 234-5] These proceedings were directed at political enemies. Wave after wave of revolutionaries were sent to the guillotine after falling out of power.
There was no presumption of innocence in the English Star Chamber. A finding of guilt could be based on the silence of the accused. [Presumption of Innocence in Peril: A Comparative Critical Perspective by Anthony Gray, p. 12]. The Star Chamber was used to control the king’s political enemies. [Criminal Evidence: Principles and Cases by Thomas J. Gardner, Terry M. Anderson, p. 175].
There was no presumption of innocence in the show trials of Stalin’s Great Terror [The Furies: Violence and Terror in the French and Russian Revolutions by Arno J. Mayer, p. 653]. Che Guevara, t-shirt boy for the revolution, perhaps said it best: “I don’t need proof to execute a man, I only need proof that it’s necessary to execute him.” He also said, “To send men to the firing squad, judicial proof is unnecessary … These procedures are an archaic bourgeois detail. This is a revolution!” This is a man who once wrote in a letter to his father, “I really like killing.” And so he did. Che personally supervised many executions while running Castro’s La Cabaña prison.
It’s no accident that these examples from history all involved political or ideological opponents. The presumption of innocence is one of the first casualties of a totalitarian mindset when political orthodoxy is threatened. So what are we to make of the fact that so many Americans now are willing to presume that Supreme Court Justice Kavanaugh is guilty, even though his accusers could provide no evidence, no witnesses, and no corroboration. Gang rapes at party after party – really? These are the same people who think nothing of suborning perjury and tampering with witnesses, to wit Leland Keyser who felt pressured to change her story to help her friend Christine Blasey Ford. If these totalitarians get their way, there will be more Salem witch trials ahead. No man or boy – or women or girl – will be safe.
I say we put Justice Kavanaugh on the rack until he confesses to his political and ideological crimes. It’s obviously sorcery that put him on the Supreme Court and we need an FBI investigation to get to the bottom of it.
Help build a fortress around the American Idea. Defend the Constitution here -
10A: Trump Justice Department sues California to block state’s net neutrality law
5A: Philadelphia agrees to dismantle civil asset forfeiture scheme and stop ‘policing for profit’
4A: Amash claims human trafficking bill is cover for increased government spying on citizens without a warrant
States: Supreme Court turns away challenge to voter-approved amendment to Tennessee state constitution allowing abortion regulations; issue was technical (how votes were counted)
1A: Seattle bus authority engaged in viewpoint discrimination in rejecting Pamela Geller ads on global terrorism, 9th Circuit panel rules
1A: D.C. Circuit keeps Pamela Geller bus and subway advertisement litigation alive; transit authority must respond
1A: federal court strikes down Hawaii law compelling pregnancy centers to refer women to abortion providers
1A: town council resolution to boycott Nike after Kaepernick featured in ads is arguably unconstitutional
1A Religion: Muslim inmate claims prison violated Free Exercise clause when it denied him a Muslim meal
2A: Maryland Rite Aid shooting doesn’t fit the Left’s gun control narrative: shooter a transgender (not a white male); handgun purchased legally in a state that has universal background checks.
5A/10A: Supreme Court case tests whether states can prosecute people for the same offense charged in federal court; implications for Mueller probe and federalism
14A Due Process: Louisiana law requiring abortion providers to have admitting privileges does not unduly burden abortion rights, 5th Circuit panel rules
Copyright: authors call for Music Modernization Act and stronger international agreements to strengthen constitutional copyright protections
Book explores how constitutional government can be rescued from expansive administrative state https://fedsoc.org/commentary/publications/can-americans-reconcile-our-constitutional-system-with-an-expansive-administrative-state
Book parses the meaning of the Habeas Corpus Suspension Clause; originalism does not come up short on protecting individual rights
Hmm... Deface or burn – decisions, decisions. Article traces the history of Supreme Court cases on the U.S. flag and Pledge of Allegiance
Shame! Senator Hirono thinks people with “ideological agendas” should not get the presumption of innocence. OK Senator, let’s start with you!
The 2016 election was the fifth time in history that the U.S. elected a President who lost the popular vote. The last time that happened - Bush v. Gore in 2000 – a serious movement was begun to get rid of the Electoral College. Tonight, I’ll review the reasons we have the Electoral College and bring you up to date on the main effort to elect future Presidents by popular vote.
Article II, Section 1 of the U.S. Constitution set up the first version of the Electoral College where, over-simplifying a bit, the candidate getting the majority of the electoral votes became President and the runner-up became Vice-President. But there were problems with the elections of 1796 and 1800. In 1796, the President and Vice-President elected under this system were from different political parties, which didn’t work out so great. And in 1800, the election went to the House of Representatives where it took 36 ballots to get Thomas Jefferson elected President. The 12th Amendment was ratified in 1804 to refine the process.
Lots of reasons have been put forth why we have the Electoral College and why it’s a good thing:
Today, the National Popular Vote Compact has gained ground since the last time I spoke to you about it. Under the compact, states give their Electoral College votes to the candidate who wins the national popular vote, not the state’s popular vote. The compact has been joined by 11 blue states and the District of Columbia which, together, have 172 electoral votes, nearly two-thirds of the 270 votes required for the compact to take effect. The compact has been called an end-run around the Constitution because, with 270 electoral votes, future Presidents would effectively be chosen by popular vote, not by independent electors as they are today.
Many fear that no conservative President could ever be elected again if the compact picks up a 270-vote majority. However, the results are not a foregone conclusion. First, the compact cuts both ways. In 2004, under the compact, California’s electoral votes would have gone to George W. Bush, even though John Kerry won 1.2 million more votes in California than Bush did. This is because Bush won the national popular vote that year.
Also, you can bet that people would sue to prevent the National Popular Vote Compact from taking effect, and the Supreme Court would ultimately have to decide the issue. States can join compacts under Article I, Section 10 of the Constitution, that’s not in dispute. But some have argued that congressional consent would have to be obtained before the compact could be enforced and any implementation of the compact without that consent would immediately be challenged. Others argue that what the compact is attempting to do can only be done by constitutional amendment. I could even see small states attempting to secede from the union in the event the compact takes effect, because it would undo one of the inducements that drew them into the union in the first place. It could be argued they have settled expectations in this area that cannot be undone by a conspiracy of larger states.
Regardless of what you think of the Electoral College, there’s no denying that it has given us seamless transitions of power without conflict or bloodshed throughout our entire history – and that’s no small feat. Supporters of the National Popular Vote Compact and direct democracy should think twice before they upset the tried and true, the carefully balanced design of the Electoral College.
The Tea Party movement started from a belief that Washington is out of control. This belief led Tea Party after Tea Party to adopt the core value of limited government under the Constitution. But there is a type of local and state agency that is also out of control, and offends our core values, as well.
I’m talking about local and state human rights commissions. Critics say they are runaway trains, run by left-wing political hacks, untrained, who think nothing of trampling on the separation of powers, free speech, and due process rights. Masterpiece cake baker Jack Phillips was the victim of the Colorado Civil Rights Commission. Some of the commissioners stated their view that there is no room for religion in the public sphere and, further that Phillips’ faith was “despicable”. They compared his widely-held religious views to defending slavery or the Holocaust. The Supreme Court struck down their enforcement action against Phillips because they were openly hostile to religion.
Phillips is not the only victim. Earlier this month, the Pennsylvania human rights commission took upon itself the power to puff up a state statute forbidding discrimination on the basis of ‘sex’ to include ‘sexual orientation’ and ‘transgender’ claims. Also this month, the Connecticut human rights commission ordered all employers in the state not to discriminate against job applicants with dishonorable discharges from the military. I don’t know about you, but these sure sound like questions for the state legislature to me.
A recent panel presentation reviewed a number of other cases from around the country. In Fort Worth, the commission has the power to investigate and issue determinations. In New York City, the commission can levy fines and file criminal proceedings. In Orange County, California, the commission was prepared to condemn a university instructor for hate speech without ever watching the videotape of the event in question. In Anchorage, Alaska, the head of the commission swore out a complaint against an attorney who was representing someone before the commission for remarks the attorney had made to the media.
In Oregon, the staffers bringing the claims and the administrative law judge – who is not a lawyer - work for the same agency, breaching separation of powers. Procedural safeguards are limited – discovery is minimal and the rules of evidence don’t apply – you can be done in by hearsay. In one case, the commissioner had made prejudicial statements to the media, but a motion to disqualify him for bias was rejected. In another instance, the defendants had a gag order placed on them – they could not defend themselves or discuss their beliefs in the media while the case was pending.
This is just a sampling of what has been going on with these commissions. So what can be done about it?
Republicans in Colorado introduced legislation to change the way human rights commissioners are appointed, beef up the oversight they receive, and allow parties to skip the commission altogether and go right to court. They later agreed with Democrats just to increase the size of the commission and subject it to a legislative audit. I don’t know where things stand in Colorado at the moment, but now would be a good time for activists to agitate for stopping unelected runaway commissions in other states that are misusing 14th Amendment Equal Protection to engage in social engineering and impose their left-wing political agendas on the rest of us.
2A: Expert John Lott demolishes study claiming ‘U.S. has the most mass shootings’; U.S. ranks 58th; study author hiding data and won’t debate Lott
1A: Federal judge voids California’s 1923 ban on handgun advertising as violating free speech
1A: student sues Wisconsin community college for preventing her from handing out religious-themed Valentine’s Day cards
1A: Rochester gives up on trying to enforce injunction relating to abortion clinic free speech buffer zone against a non-party
Free expression: ‘report your friends and neighbors to the police for making insulting comments’. Soviet Union long ago and far away? Nope. UK today.
2A: California to ratchet up ammunition controls next year; already, residents must buy their ammo in-state from state-approved vendors.
2A: California bill (AB2888) expanding list of people who can ask for gun violence restraining orders advances to Governor’s desk
2A: left-wing group funding public radio advocacy ‘journalism’ aimed at refining how to get gun control measures passed. #ExposeTheirMethods
5A: terror suspect claims Trump tweets calling for death penalty makes a fair prosecutorial decision impossible
8A: 9th Circuit rules prosecuting the homeless for sleeping outside is cruel and unusual punishment
Sovereign immunity: Supreme Court to hear issue of whether a state can be forced into another state’s courts
AG Jeff Sessions speaks against nationwide injunctions which used to be rare, but have hampered Trump 25 times in 2 years
Editorial: 9th Circuit intellectually dishonest in donor disclosure case; ignored record evidence of lack of necessity, state’s failure to safeguard names, and threats against AFP Foundation donors
Shame on John Brennan for calling on Deep State resisters to disobey Presidential order to declassify documents. This would overturn the Constitutional order. None dare call it treason.
“You have the right to remain silent. Anything you say can and will be used against you in a court of law.” Anyone who watches TV in America can recite these words in their sleep. But what they actually mean in practice can surprise you.
Take the highly publicized case of Brendan Dassey who was convicted of murder and other offenses based on a confession he made when he was 16. His story was made into a miniseries on Netflix. His lawyers argued that Brendan is intellectually challenged and susceptible to suggestion. Brendan has a low IQ and tests in the 7th percentile. They say detectives spoon-fed him answers that were incriminating and consistent with the evidence, which Brendan then adopted. No lawyer or parent was present. The session was recorded and one report said he appeared to be unaware of the gravity of his situation. A judge would later write, “What occurred here was the interrogation of an intellectually impaired juvenile.... Dassey was subjected to myriad psychologically coercive techniques....” One of those techniques was detectives repeatedly saying they already knew what had happened. This judge called Dassey’s conviction “a profound miscarriage of justice.”
Was this a voluntary and truthful confession, or was it coerced? The Supreme Court acted on the case earlier this year, but before turning to that, let’s first look at the Constitution and the history of the right against self-incrimination.
The Fifth Amendment states that no person “shall be compelled in any criminal case to be a witness against himself....” The right against self-incrimination applies in state criminal cases through what is called the incorporation doctrine. [Chemerinsky, Constitutional Law (4th ed.), p. 516]
The history of compulsory self-incrimination goes back at least as far as the Spanish Inquisition. It was used in England for 400 years after the Magna Carta. [The Making of America, pp. 705-06] The English Star Chamber used torture to obtain confessions. In 16th and 17th century England, anyone refusing to swear their innocence was considered guilty. Suspected Puritans were pressured to take the oath and reveal the names of other Puritans. The Puritans began to resist the interrogations and brought the idea of a right against self-incrimination with them when they fled to the New World, where the right ended up in our Constitution.
Back to Brendan Dassey and the question of whether his confession was voluntary, a panel of the 7th Circuit Court of Appeals overturned his conviction in June of 2017, but the full court reinstated it in December of that year. The Supreme Court turned down the case in June of this year, declining to hear it.
In arguing for that result, the state of Wisconsin asserted that the confession was voluntary and properly obtained. The detectives were sympathetic and encouraged Dassey to be truthful. Another judge along the way wrote:
Dassey was convicted of first-degree intentional homicide, second-degree sexual assault and mutilation of a corpse. He was sentenced to life in prison and won’t be eligible for parole until 2048. He still has supporters, though, who hope to spring him before then.
One final note: Tomorrow is Constitution Day. Celebrate the fact we have a Constitution that prevents tyranny and protects our rights, like our right against self-incrimination. Sure, there are tough cases where it’s hard to decide whether a confession is voluntary or coerced but, still, having the right sure beats being tortured in the Star Chamber, doesn’t it?