I have three items for you tonight - the green new deal, an abortion ruling, and a case about discrimination against Israel.
First, a green new deal resolution was introduced in the House this past week with 67 co-sponsors. I couldn’t find any articles analyzing the constitutionality of the resolution, which troubles me. Here you have an outlandish proposal and nobody is even asking whether it’s constitutional. When I looked over the resolution myself, I found a lot of familiar ingredients, and nothing jumped out at me as being unconstitutional, when the resolution is taken at face value. The ingredients have long been considered constitutional, things like regulating agriculture and the environment; government spending on infrastructure and public transit; and upgrading buildings. The promise to get rid of planes was widely ridiculed, but it’s from an earlier draft that talked about having so much public transit and hi-speed rail that jet travel would no longer be necessary, not taking planes by eminent domain under the 5th Amendment to the U.S. Constitution. The resolution talks about moving to 100 percent renewable energy, but government policy has long favored some forms of energy over others. The proposal is short on specifics, but it does not say that fossil fuels must be left in the ground, which would raise regulatory taking issues under the 5th Amendment. Even if regulatory taking issues come up in the implementation of the resolution, those cases are tough to make. What about guaranteeing everyone a job, whether they want to work or not? It might not be good policy, but we’ve had social programs in this country for a long time. No, the biggest constitutional objection to the green new deal I can see at present is the spirit of the thing. The massive “10-year national mobilization” would turn everything upside down and interfere with everyone’s lives. The government is not supposed to be that intrusive. It sounds more like North Korea, where people are mobilized to pick berries and nuts for Dear Leader, than America to me. We’re supposed to have limited government in this country, not massive government overreach, or mass mobilizations in peacetime whenever politicians say jump.
Second item: There was a lot of commentary this past week about Chief Justice Roberts going over to the dark side and joining the four liberals on the Supreme Court in temporarily blocking abortion restrictions from taking effect in Louisiana. The Tea Party and thus my commentaries usually stay away from social issues, but Roberts’ decision is instructive in understanding how the Supreme Court works in general. Roberts is, first and foremost, an institutionalist. He can be expected to act in what he considers to be the best interests of the Supreme Court as an institution. The Supreme Court is always reluctant to overturn precedent, and is even more reluctant to do so when the case is at an intermediate stage. The posture of the abortion case this past week was not a final ruling; it was a request for an injunction while the case proceeds below. Roberts was not going to get into whether or not to overturn Roe v. Wade or other aspects of abortion jurisprudence on an interim procedural matter. What he will do when another abortion case is finally and squarely presented is still anybody’s guess.
Finally, keep your eye on BDS. There’s a First Amendment issue that may end up in the Supreme Court. BDS is the Boycott, Divestment and Sanctions movement against Israel. This past week, a federal judge upheld an Arkansas law forbidding state agencies from dealing with companies that boycott Israel. The ACLU had argued on behalf of a newspaper that the law violates free speech, citing precedents from civil rights boycotts. The newspaper had refused to sign a pledge never to boycott Israel as demanded by a state college that was an advertiser in the paper. The court ruled that a business boycott is commercial conduct and not a speech issue at all, citing Supreme Court precedents. But courts in Kansas and Arizona have gone the other way and the issue is currently before the 9th Circuit Court of Appeals. I expect one or more of the anti-BDS cases to eventually make its way to the Supreme Court.
I’ve said many times on this webinar that the rise of the authoritarian Left is the central challenge of our time. We have seen this rise in the Obamacare individual mandate, the anti-Trump riots, and in the way the gun grabbers won’t quit.
I went back through the news on free speech for the last few months and there it is again - the rise of the authoritarian Left and the central challenge we must face.
In recent months, an angry mob chased Ted Cruz and his wife out of a restaurant and broke Tucker Carlson’s front door. These are not constitutionally protected activities.
Unions are flouting the Janus decision, requiring workers to take steps to get out of forced dues and refusing to issue them refunds. Liberals in Massachusetts tried to overturn the Citizens United case with a ballot initiative limiting political spending. California passed a law requiring pro-life pregnancy centers to advertise abortion but, thankfully, the law got knocked down. The University of California at Berkeley tried to keep Ben Shapiro and other conservative speakers off its campus, but was forced to change its policies and pay $70,000 in damages. Shawnee State University got sued for punishing a professor who refused to use a transgender’s pronoun of choice. A high school in Wisconsin banned pro-gun T-shirts. Another high school, this one in Texas, tried to keep cheerleaders from putting Bible verses on their banners.
New York is pressuring banks and insurance companies not to do business with the NRA and the NRA took the state to court. Atlanta had to cough up $1.2 million for terminating a fire chief for his religious beliefs. The Seattle bus authority blocked Pamela Geller when she tried to put ads on city buses. James O’Keefe got sued for secretly recording government officials, but he won in court. Prager University lost its first case against Google and YouTube, but is back in court challenging the tech giants’ censorship of its videos on state constitutional grounds, while the first case is on appeal in federal court.
Those are some of the First Amendment cases that came up in the last few months. I tracked some other stories that technically don’t involve the First Amendment, but show you how the overall climate for free expression is turning hostile, thanks to the authoritarian Left and its allies.
A document leaked from Google said the big tech firms have lost their free speech culture and moved toward censorship. Google employees discussed manipulating search results to bury conservative media, in order to swing the upcoming 2020 elections. A hundred Facebook employees felt compelled to form a group to fight the lack of ideological diversity within their ‘intolerantly liberal’ company.
The European Parliament moved to ban ‘hate’ speech across the entire EU, calling for special police to prosecute and jail critics of radical Islam, the gay agenda, open borders, transgenderism, etc., etc. By the way, don’t you dare call Muhammad’s practice of child marriage ‘pedophilia’ because that would be blasphemy and you would be a criminal, the European Court of Human Rights ruled. People in the U.K. are being asked to report their friends and neighbors to the police for making insulting comments. I wonder if ‘stop your whinging’ qualifies.
Meanwhile, the big daddy of them all, the leftist and Islamist-controlled United Nations wants to criminalize comments about migrants in its recent pact on worldwide migration. It’s not the first time the UN has attacked free speech. Why do we send the UN money, again?
Connect the dots and what have you got? The authoritarian Left is on the march. Whether it’s unhinged mobs, gender pronouns, or cheerleaders in Texas, the rise of the authoritarian Left is the central challenge of our time. It is our duty as keepers of the Republic to meet this challenge head on, and put the enemies of free speech in their place.
Tonight, I talk about facial recognition technology and the Fourth Amendment.
Law enforcement is already using facial recognition in some contexts, more than people realize. [“Surveilling in Secret”, Cato Policy Report, March/April 2018 at p. 9]
In some places, when the police stop someone, they take a picture on the spot and identify the person with a smartphone app that searches against driver’s license photos and other picture databases. Law enforcement now has access to the driver’s license photos of 119 million people in 30 states, more than half of all American adults.
Police in some places also save all mugshots in facial recognition databases for future searches. Or they take stills from surveillance camera video or cell phone video and run database searches on them.
But real-time Identification is the most problematic scenario. Police are getting more interested in using video systems to immediately identify people walking by on the street, or faces in a crowd. Maybe they’re looking for somebody specific, but imagine if we had police doing this across the street from our Tea Party rallies. Chilling effect on the Tea Party? You bet. The Baltimore County police department reportedly uses facial recognition at public protests.
Critics worry that this technology will have a larger impact on blacks because, proportionally speaking, there are more mugshots of black people. Critics also worry that these systems aren’t very accurate and identify the wrong people in too many cases - one out of seven, the FBI found. The systems are even less accurate when it comes to blacks, women, and young people. Imagine the number of mistakes that will be made if schools or law enforcement take facial recognition a step further and hook it up to machine algorithms that claim to be able to predict future dangerous behavior. How would you like to be caught up in that just because you look grumpy that day?
A third concern is that there are no comprehensive state or federal laws governing the use of facial recognition technology in law enforcement. Few law enforcement agencies even have policies restricting the use of facial recognition to certain crimes, or prohibiting its use where there is no articulable suspicion, or preventing it from being used when the First Amendment is involved.
The law is way behind technology in this area, and just beginning to come to grips with the issue. There were House hearings, and state legislators have started to look at the issue in Vermont, Maryland, and New York.
Lots of legal questions will have to be decided. For example, does facial recognition constitute a ‘search’ that triggers Fourth Amendment protection? Some argue it does. What is the legal standard of suspicion police must meet before using facial recognition technology? Last term in the Carpenter case, the Supreme Court ruled that a warrant must be obtained before a person can be tracked by their cell phone. Will Carpenter be read more broadly to prevent surveillance of an individual’s activity in public without a warrant? Does it matter whether the ‘private property’ or ‘reasonable expectation of privacy’ theory of the Fourth Amendment is used? Will the Court hold the line against mass surveillance without articulable suspicion? Finally, given all the inaccurate results produced by facial recognition technology, will false positives have to be turned over as exculpatory evidence in criminal trials?
The law better hurry up. Facial recognition is already in use in the United Kingdom for police body-cameras and dash cams. Also, we don’t want to end up like Russia, where facial recognition is used to crack down on anti-government protesters, or like China, which has so many cameras and has deployed so much facial recognition capability that authorities can find you within minutes of you walking out your front door. But it’s also true that facial recognition technology has been dropped already, by some police departments, because of complaints and controversies, and maybe that’s not always a good thing, either. Stay tuned - this issue is just getting started.
Help – I’m being ruled by Anthony Kennedy! Or at least I was, until he retired last year. Which begs the question: who will be the next Supreme Court Justice to play social engineer? And why should we – as a self-governing people – have to put up with it?
Anthony Kennedy wrote the majority opinion in the Obergefell case in which he declared same-sex marriage a fundamental right under the Due Process clause of the 14th Amendment, and state laws against same-sex marriage a violation of Equal Protection, also under the 14th Amendment. This was social engineering, pure and simple. He had a vision of the perfect society and declared it from the top down, instead of waiting for genuine organic social change from the bottom up. Obergefell is not the only example of his social engineering. Remember his theory of ‘unconscious bias’, which has been debunked? According to Anthony Kennedy, we must all be prevented from exhibiting prejudices we don’t even know we have. Kennedy used that theory in a 2015 case to allow housing discrimination claims based on population statistics, without any showing of discriminatory intent, thus opening the door to requiring subsidized housing in his ideal locations. More top-down, cram-down social engineering from the former Justice Anthony Kennedy.
How did we get to this place, where Supreme Court Justices come to think of themselves as ‘engineers of human souls’, as Stalin put it, enlightened beings whose job it is to ram their vision of a perfect society down our throats?
The answer is there’s a hole in the Constitution. The text of the U.S. Constitution is silent on the question of who gets to decide constitutional questions, short of constitutional amendment. Our system was dramatically changed when the Supreme Court arrogated to itself the power to declare statutes unconstitutional in Marbury v. Madison in 1803. This is euphemistically called ‘judicial review’.
It doesn’t make any sense to me that nine unelected judges – or five who make up a majority of the Supreme Court – or a single swing Justice like Anthony Kennedy – get the final say on constitutional questions in a constitutional Republic where the people are supposed to be sovereign. Why should nine unelected masterminds get to decide what are fundamental rights for the entire country, and what are not? This is not the Rule of Law; it’s the rule of the subjective opinion of the tiniest of elites.
I propose a constitutional amendment to allow a super-majority of state legislatures to overrule decisions of the Supreme Court on constitutional questions. Why state legislatures? Because of all the institutions we have, state legislatures seem to me to be the closest to the people. They are the best expression of popular sovereignty that our Republic has. The idea for this amendment is not original with me. Mark Levin proposed it in his book The Liberty Amendments in 2013 [p. 211].
Some will argue that judicial review is a good thing and point to the fact that Alexander Hamilton wrote in favor of it in the Federalist Papers, No. 78. However, Hamilton predicted a judiciary that would remain weak, calling it the “least dangerous” branch. Hamilton wrote that the judicial branch is not in control of the military or the purse strings. It has no real power to enforce its judgments, and thus could never become a major threat to the liberty of the people. Courts would never become arbitrary because they would be bound by rules and precedents.
Well, things didn’t work out that way, did they? Since Marbury, the Supreme Court has uttered its pronouncements and, with few exceptions, the rest of us fall in line. Now the Court is making stuff up, like fundamental rights out of thin air, regardless of precedent. This was all foreseen by the Anti-Federalist Brutus who wrote that, with unchecked judicial review, judges would substitute their will for the plain text of the Constitution:
It’s time We the People reclaim our sovereignty. This year, I begin exploring the fine points of what I call the ‘popular sovereignty amendment’ and what it would take to put the idea before the American people. Your comments and suggestions are welcome. Let’s reinvigorate the amendment process and have a full discussion of who should be running the show.
Last year at this time, I talked to you about the constitutionality of Christian nativity scenes under the Establishment Clause of the First Amendment of the United States Constitution. I told you how the rule evolved over time to allow nativity displays in public places, but only if they are deemed to serve secular purposes such as celebrating a holiday or depicting the origins of that holiday. The displays that have passed constitutional muster in recent years have all included non-Christian symbols, like plastic reindeer, leading some to derisively call the current state of the law on this subject the ‘reindeer rule’. I showed you how, through the wizardry of Supreme Court jurisprudence, the Establishment Clause – which, on its face, has nothing to do with passive religious displays – is now the ‘endorsement clause’ – Congress shall make no law constituting an endorsement of religion, or appearing to favor one religion over another. Originally, the Establishment Clause was addressed to situations, like in my own state of Virginia, where the government in colonial times had ordered everyone to attend a particular church and had even paid the ministers. That’s the establishment of a state religion, no question about it.
But now that Pandora’s Box has been opened – can I say that without endorsing Greek mythology? - the issue will probably never go away. Three current situations show how the battle continues. In the first, a 4-foot Satanic statue is now on display in the Illinois state capital building alongside a nativity scene. The Satanic Temple of Chicago – which says it’s merely a benevolent association – applied to display the statue and the Illinois state government decided the group has the same rights as any other religious organization, so its display could not be censored. The Satanic Temple says it does not actually worship Satan; it’s just a group of atheists, humanists, and free speech activists. So how is that a religion? The Supreme Court has never really defined ‘religion’ beyond saying it must be a set of sincerely held beliefs, no Deity required. [Chemerinsky, Constitutional Law: Principles and Policies (4th ed. at 1231-34]. Atheism and humanism certainly qualify under that loose definition.
The second situation involves a 4-story tall World War One memorial in the shape of a cross in a Maryland suburb of Washington, D.C. The Fourth Circuit Court of Appeals emphasized the Christian origins of the memorial in ruling that it violates the Establishment Clause and must be removed. [American Humanist Association v. Maryland-National Capital Park & Planning Commission] That case is now in the Supreme Court.
The third situation involves a cross that has been in a Pensacola city park for 75 years without controversy, up until now. A three-judge panel of the 11th Circuit has ruled that the cross must come down. The city wants the Supreme Court to take the case, arguing that long public acceptance of the cross is enough to make it kosher under previous Supreme Court precedents and, further, that the passage of time before any legal challenge was mounted indicates that just about nobody considers the cross to be an ‘establishment’ of religion. As of this writing, the Supreme Court has not indicated whether it will take the case.
From time to time on these webinars, I have criticized the Supreme Court for deviating from the Founders’ design. When the Supreme Court stopped requiring active measures imposing a state religion to make out violations of the Establishment Clause, and veered off into deciding whether passive religious displays endorse religion, it opened the door to an endless stream of cases where it would have to decide on fine shadings of fact what is and what is not an ‘endorsement’. How many reindeer are enough? None of this would be necessary if the Supreme Court had stuck to the original meaning of the word ‘establishment’ in the first place.
But that’s just me. Like I said, this issue isn’t going away. See you same time, a year from now.
A federal judge has thrown out the federal female genital mutilation statute and dismissed the key charges in the Detroit FGM case.
I first told you about this case last year. At that time, the Muslims charged in the case were raising a religious liberty defense, arguing that they had acted within their constitutional rights on the facts presented. But the focus changed to the Commerce Clause and the judge ruled that FGM is a local criminal activity within the purview of local authorities and beyond the reach of Congress to regulate.
The Commerce Clause is in Article 1, Section 8 of the U.S. Constitution. It’s what gives Congress the power to regulate commerce among the several states. You may recall that Chief Justice John Roberts found that Obamacare violated the Commerce Clause before doing judicial backflips and upheld it as a tax.
The Detroit case was the first prosecution under the 22 year-old federal FGM statute. Prosecutors claimed that as many as 100 girls from Michigan, Illinois, and Minnesota had been cut. The defendants argued that FGM has nothing to do with commerce, that “mutilation is not an economic activity.” The government argued that children were transported across state lines and that the procedures were arranged with the use of cellphones, and involved medical tools and drugs sold in interstate commerce. They further argued that a healthcare service is a commercial service. The judge knocked down the FGM statute as unconstitutional and dismissed most of the charges against the two Michigan doctors.
In his opinion, the judge wrote that FGM may be a “despicable” practice, but it’s up to the states to regulate it. He recounted a long history of cases saying the federal government can’t touch purely local crimes. He said there was nothing commercial about FGM. It’s just an assault and, like rape, has no effect on interstate commerce. He relied on a precedent knocking down part of the Violence Against Women Act on the grounds that sexual assault has no effect on interstate commerce. He pointed out that, in the Detroit case, there was “no suggestion the procedure was done for money.” If there was evidence in the record that money changed hands, it was not reported in the stories I read.
The U.S. Attorney’s office hasn’t decided yet whether or not to appeal. Serious conspiracy and obstruction charges remain and are set for trial in August 2019, although there is now a motion to dismiss a conspiracy charge. There is a state FGM statute in Michigan, but the defendants in the Detroit case can’t be charged under it because it was passed after the federal case arose. You can’t charge people retroactively; that would be an ex post facto prosecution and unconstitutional under Due Process and Article 1, Section 9 of the U.S. Constitution.
You might recall a Commerce Clause case from the New Deal era, Wickard v. Filburn. The wheat in that case was consumed locally on the farm where it was grown and never crossed state lines. But the price stabilization statute was upheld because the farmer’s actions were deemed to have an effect on wheat prices elsewhere, so there was an effect on interstate commerce. We have, in the Detroit case, people who did cross state lines, but the statute was knocked down. If this doesn’t make any sense to you, welcome to the wacky world of constitutional jurisprudence.
There were other problems with the judge’s opinion. There is a distinction in the law between a facial challenge to a statute and a challenge to the statute as it is applied in a particular case. A successful facial challenge means there is no set of facts imaginable under which a law could be constitutional. A successful ‘as applied’ challenge means that the law is unconstitutional on the facts presented, but there might be other facts where application of the law would be constitutional. In the Detroit case, the judge said that FGM is not an economic activity or healthcare service. But what about potential cases in the 23 states that don’t have their own FGM statute making such cutting illegal and there is evidence in the record that money changed hands? Under those facts, there would be no local crime and the commercial nature of people crossing state lines to consume a healthcare service would be undeniable. Voilà! – the effect on interstate commerce the judge said was lacking in the Detroit case justifying Congressional regulation and the federal statute.
The judge did not limit his ruling to the way the statute was applied. Instead, this judge went out of his way to knock down the entire federal statute as unconstitutional on its face when there are circumstances under which it could be constitutionally applied under the judge’s own reasoning. The judge’s opinion does not hang together, logically speaking.
An appeal could go either way but, for now, the ruling only applies in the District where the judge sits. He did not issue a nationwide injunction, as is the fashion these days. It will probably be a long time before the issue reaches the Supreme Court and is decided there. The Supreme Court often waits for a conflict between Circuits or other courts of appeal. But there is a code of silence regarding FGM in Muslim communities, so there are few potential complainants and, consequently, few prosecutions will be brought around the country, if any are brought at all. These would have to work their way up through the appeals process and produce divergent results before the Supreme Court would get interested, if the common pattern holds.
Be that as it may, pressure will have to be brought on state and federal prosecutors to do their jobs and bring cases, or one tentacle of sharia law will have effectively extended its reach over America.
I discussed the Detroit case in greater detail on Sharia Crime Stoppers radio and you can find the archive here.
At first glance, it seems outlandish that a federal judge would order President Trump to return Jim Acosta’s press pass. Surely, there can’t be a constitutional right to attend White House press conferences, can there? But the judge’s order becomes much more understandable when you dig into it a little.
No opinion, order, or transcript is publicly available at this time [1:18-cv-02610-TJK CABLE NEWS NETWORK, INC. et al v. TRUMP et al, U.S. District Court for the District of Columbia], so we start, as always, with the text of the U.S. Constitution. The First Amendment protects, among other things, freedom of the press. The Fifth Amendment provides that no one shall be deprived of life, liberty, or property without due process of law.
The heart of the matter is that Jim Acosta of CNN, once granted a White House press pass, has a liberty interest in that pass that is protected by due process. He cannot be deprived of his pass without first being afforded due process of law. This is the basis of the judge’s order. Due process, among other things, means notice and an opportunity to be heard. The White House pulled Jim Acosta’s press pass without giving him notice or an opportunity to be heard before the revocation. The judge recited these facts, as well as the fact that the government’s lawyer could not say who actually ordered the revocation, making the process indeterminable.
The judge relied on a 1977 federal appeals court decision involving Robert Sherrill of The Nation magazine. Sherrill was denied access to the White House, the Secret Service said, because he had a couple of assaults in his background – one while on the job. He had punched the Florida Governor’s press secretary while on a campaign train. What a rude, terrible person but, still, the court in that case upheld his First and Fifth Amendment rights. The court concluded “that notice, opportunity to rebut, and a written decision are required because the denial of a pass potentially infringes upon First Amendment guarantees.”
Judge Timothy Kelly, a Trump appointee, said, while he may not agree with the 1977 precedent, he felt duty-bound to follow it in Jim Acosta’s case. A couple of other factors weighed in the judge’s decision. Judge Kelly found that CNN would likely prevail on the merits. He also expressed his skepticism about White House claims that it had pulled the pass due to Acosta’s bad behavior at a recent press conference. CNN argued that the pass was pulled, not because of Acosta’s behavior, but because of his prior reporting that was unfavorable to the President. This raises the possibility that the White House was actually acting against Acosta because of the content of his viewpoint, a big free speech no-no. The judge also rejected the administration’s argument that CNN has plenty of other reporters covering the White House. As the judge put it, "That CNN may send another journalist to the White House does not make the harm to Mr. Acosta any less irreparable."
After the judge’s ruling, the White House indicated it would draw up some rules regarding decorum at White House press briefings. The judge’s ruling was on CNN’s application for a temporary restraining order and the White House has not indicated whether it wants to continue with the litigation. The judge left open the possibility that the White House could still revoke Jim Acosta’s pass if it first affords him due process. The judge also seemed to suggest that President Trump would be within his rights never to call on Jim Acosta again.
For the life of me, I can’t understand why the White House continues to hold press conferences for the hostile fake news media. Why not just send everybody press releases and maybe answer some questions by email? If due process vests because the government creates a forum, then why not do away with the forum?
President Trump caused quite a stir late last month when he announced his intent to sign an executive order ending birthright citizenship for U.S.-born children of noncitizens. Both sides of this debate cite legislative history and Supreme Court cases in support of their positions. Tonight, I’ll try to cut through the fog and lay out the issues clearly for you.
We start with the pertinent words of the 14th Amendment: “All persons born ... in the United States, and subject to the jurisdiction thereof, are citizens of the United States....” The immediate purpose of this provision was to reverse Dred Scott and make it clear that freed slaves and their children were in fact U.S. citizens.
But what do the words “subject to the jurisdiction thereof” mean? Proponents of birthright citizenship for the children of illegal aliens say it simply means that a person is legally required to obey U.S. laws and can be punished if they break those laws. This seems to me to read “subject to the jurisdiction thereof” right out of the Constitution. Of course anyone, except maybe diplomats, can be given a speeding ticket. I don’t see how that should confer citizenship.
It seems to me that the critics of birthright citizenship have the better argument – that “subject to the jurisdiction thereof” means that the person owes their political allegiance to the United States. Diplomats, as well as students and others here on temporary visas, do not owe their political allegiance to the United States. If they happen to give birth while here, their children do not owe political allegiance to the United States, either, and thus are not ‘subject to the jurisdiction of the United States’ as those words are arguably properly read. It is not controversial that diplomats’ children born in the United States are not citizens of this country.
Proponents of birthright citizenship point to statements made during the congressional debates on the 14th Amendment by Pennsylvania Senator Edgar Cowan who opposed the Amendment because, as he understood it, the amendment would give U.S.-born children of Chinese laborers and other noncitizens citizenship even though they did not owe allegiance to the United States. On the other hand, Senator Lyman Trumbull of Illinois expressly said that ‘subject to the jurisdiction of the United States’ included not owing political allegiance to another country. No wonder Justice Clarence Thomas doesn’t like legislative history and says cases should be decided by what is enacted rather than by what is intended.
This brings us to the dueling Supreme Court cases, none of which really decide the issue. This is because the issue of birthright citizenship for U.S.-born children of aliens not legally resident in the United States has never been squarely presented or squarely decided by the Supreme Court. All the cases involve some other fact pattern making the loose statements about birthright citizenship in those cases what lawyers call dicta – extraneous verbiage that does not have the force of law.
Proponents of birthright citizenship point to United States v. Wong Kim Ark, an 1898 case which made broad statements about “birth within the territory” but only decided that the children of lawfully resident immigrants are U.S. citizens. Proponents also cite Plyler v. Doe from 1982 which gave the children of illegal aliens the right to a public education, but the Court did this because the Equal Protection Clause of the 14th Amendment applies to all ‘persons’ in the U.S., not just citizens.
On the other side of the ledger, critics of birthright citizenship cite the 1873 Slaughter-house Cases in which the Court wrote that “[t]he phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of … citizens or subjects of foreign States born within the United States.” In 1884, the Supreme Court in Elk v. Wilkins denied the birthright citizenship of American Indians, saying being born in the territory of the United States was not enough to confer citizenship and that American Indians were not ‘subject to the jurisdiction of the United States’. This ruling was later changed by statute. There are other cases, but you get the idea.
Critics of birthright citizenship say the doctrine was cooked up by the State Department not all that long ago, and that what the executive branch has done can be undone by executive order. President Trump just recently reiterated his intent to sign an order ending birthright citizenship and said the issue would probably end up in the Supreme Court.
Estimates vary, but there are at least 4 million children of illegal aliens who have received birthright citizenship. The trend in other Western countries is away from birthright citizenship while, in our country, birth tourism has become an industry, with birthing centers for Russian and Chinese women making headlines.
My personal preference would be for Congress to settle the matter by passing a law. Article 1, Section 8 of the U.S. Constitution gives Congress the power to establish a uniform rule of naturalization, to say who and who does not get to be a citizen. Congress should step up to the plate, fulfill its constitutional duty, and settle the issue of birthright citizenship. The last stop in that process would probably be the Supreme Court, but at least the duly elected representatives of the people would have spoken.
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.
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.