The Equal Rights Amendment was back in the news this week. All eyes are on Virginia where a bill to ratify the ERA is working its way through the state legislature. The bill is expected to pass, making Virginia the 38th state to ratify the amendment, setting up a big constitutional fight.
Congress set a seven-year deadline for ratification and only 35 states had done so before the allotted time expired in 1982. Recently, three states - Alabama, Louisiana, and South Dakota - have sued the Archivist of the U.S. for illegally holding the ratification process open beyond the deadline and refusing to recognize the fact that five states rescinded their ratification by 1982.
This past week, the Justice Department Office of Legal Counsel weighed in with an opinion stating “because three-fourths of the state legislatures did not ratify before the deadline that Congress imposed, the Equal Rights Amendment has failed of adoption and is no longer pending before the States.” It would be unusual for the Archivist, who is part of the executive branch, to ignore the definitive statement of the executive branch on the subject.
Democrats have introduced legislation to have Congress remove the deadline. The Justice Department opinion said there is no constitutional text or judicial precedent allowing for that. [p.28] While Congress has already extended the ERA deadline once, the Justice Department said the pending legislation is different this go-around because it purports to remove ANY deadline, not just extend the ERA again for another definite period of years. [p. 26] Also, removing the deadline would raise a whole host of nettlesome questions, such as whether a future Congress could kill a proposed amendment by shortening the deadline, and whether a two-third’s vote would be required for all questions relating to changing the substance or procedures of proposed amendments.
But the Justice Department does not have the final say. Virginia Attorney General Mark Herring has already said he will defend the ERA in court when the state ratifies it.
You can be sure all of this will end up in the Supreme Court eventually. Don’t forget the question of whether states can rescind their ratifications. The Constitution is silent and the Justice Department gave no opinion.
Lots of unanswered constitutional questions here. The show is about to begin.
If a tree falls in the forest and no one is around to hear it, did the tree really fall?
If the House votes articles of impeachment and doesn’t transmit them to the Senate, is the President really impeached? Can the Senate proceed to a trial without the House formally presenting articles of impeachment?
We start, as always, with the Constitution but, unfortunately in this case, the Constitution doesn’t take us very far. Article I, Section 2 gives the House the sole power of impeachment. Article I, Section 3 gives the Senate the sole power to try all impeachments. Article II, Section 4 says the President and other civil officers of the U.S. “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” That’s pretty much it. Impeachment is mentioned in a couple other places in the Constitution not relevant to tonight’s discussion.
So the Constitution is silent on the current situation where the House has voted to impeach but has, so far, refused to present the articles of impeachment to the Senate. I’m sorry to have to tell you there is no clear answer to this quandary. Legal experts disagree.
Some of the commentary has focused on House and Senate rules. The Senate adopted its current impeachment rules in 1986. Rule 1 says the Senate impeachment process begins after the House appoints managers to carry the articles of impeachment to the Senate. Rule 3 says the Senate trial generally begins the day after the House formally presents articles of impeachment to the Senate.
Could the Senate change its rules and proceed now? After all, none of these steps are set forth in the text of the Constitution. One argument is that the Constitution gives the House the sole power of impeachment and this implies it includes the power to specify when the act is final. The counter-argument is that all of this puts form over substance and the Constitution does not require formal presentment. The Senate has the sole power to try impeachments and therefore has the power to decide when and how that happens.
If the Senate changed its rules, there would be a constitutional impasse. The Senate would say the President has been impeached and the House would say no, he has not. It’s not clear the courts would have any business wading in. Article I, Section 5 of the Constitution says each house of Congress may determine its own rules. If the courts do wade in, another question would be whether Supreme Court Chief Justice John Roberts would have to recuse himself since he would be presiding over any impeachment trial. That could leave the Supreme Court deadlocked at 4-4 and no way out of the impasse.
I tell you folks, the November election can’t get here soon enough.
You may have heard that the Second Amendment sanctuary movement is taking Virginia by storm. There are overflow crowds at city and county council meetings. Events are still unfolding. The best source for keeping up with the situation is the Virginia Citizens Defense League website - vcdl.org. At the moment, there are 93 Second Amendment sanctuary cities, towns, and counties. The number is sure to rise because sanctuary resolutions are being considered in two dozen more places.
There was a report that all of this caused the Democrats to abandon plans to introduce an assault weapons ban even though they now control the state legislature and have the Governor’s mansion. However, they modified their proposal to grandfather in existing weapons and want to require them to be registered. Critics say gun registration is the first step to gun confiscation and the Democrats’ new position must still be opposed.
The Democrats are also talking about calling out the National Guard to enforce future gun control measures. Governor Ralph Northam said there would be no ‘retaliation’ but did say there would be unspecified ‘consequences’ if law enforcement officers refuse to enforce laws on the books. Legal analysts agreed the Governor could call out the National Guard, but said it would be unprecedented to do so given it would be the first time the National Guard will have been used to enforce laws many see as tyrannical. The Virginia National Guard released a statement saying it would not speculate on the possible use of the National Guard for law enforcement purposes.
Other wild talk is flying around. A sheriff in Virginia threatened to deputize thousands of citizens to get around any gun control measures the new Democrat legislature might pass. One of the sanctuary counties passed an additional resolution allowing it to order up a militia to ensure that everyone can own a weapon. One commentator even said the globalists are trying to provoke a civil war and we might see a revolution if authorities try to use deadly force on the populace.
So it’s all pretty amazing to watch, especially since I live in Virginia, but there may be less to gun sanctuaries than meets the eye. There is commentary to the effect these sanctuary resolutions are just symbolic. They don’t have any teeth and won’t stop the enforcement of any state or federal gun laws. Unlike illegal immigration sanctuary city laws, the Second Amendment sanctuary measures generally don’t prohibit local government employees from using funds or resources to assist in the enforcement of federal or state gun laws or regulations. Moreover, these measures are generally nonbinding resolutions, not laws at all.
So it’s not clear how all this is going to shake out. I just wish there had been this kind of energy all along in Virginia. Then maybe Tea Partiers and others on the political right would not have to wonder what’s in store for us now that our state has gone blue.
Finally, if you don’t know why we have the Second Amendment, it’s to prevent tyranny. My Potomac Tea Party made a short video on this last year and it’s still on our Potomac Tea Party website. (Citizens, Give Up Your Guns! - Why We Have the Second Amendment)
Understand Clarence Thomas’ jurisprudence and you will understand a lot about the original intent of the Constitution.
In Thomas’ view, the Constitution is as current today as it was when it was drafted in 1787. It is the blueprint for our self-governing Republic where the People are sovereign, not subjects to be ruled.
If the Founders had wanted a ‘living, breathing Constitution’, they could simply have copied the British who don’t have a written constitution, Thomas has said. But the Founders chose to have a written Constitution and it was understood at the time that its meaning would not change, except through amendment.
Thus, the Founders’ design was ‘perfictible’, as Thomas has put it. This was illustrated by the Civil War amendments that secured the blessings of liberty for former slaves and their progeny.
Thomas believes the modern Supreme Court and the other branches of government have deformed the Constitution. He has taken it as his mission to remedy the situation. Thus, he views stare decisis - the doctrine that judges should follow precedent - as being applicable to the lower courts. But Supreme Court Justices must be faithful to the Constitution, not prior cases which should be overturned if they have deviated from our founding documents.
This makes Thomas often a minority of one on the Court, but his model is Justice Harlan’s solitary dissent in Plessy v. Ferguson, one of the worst decisions the Supreme Court has ever handed down. The Plessy Court ruled that ‘separate but equal’ satisfied the 14th Amendment’s Equal Protection clause, but Harlan’s dissent eviscerated this view and he eventually prevailed. Like Harlan, Thomas is leaving a road map for future Justices - in Thomas’ case, to return to the Founders’ original design.
To give one example, the Supreme Court struck down Chicago’s ban on owning handguns in the 2010 McDonald case on the grounds it violated the Second Amendment as applied to the states through the judicially-created ‘substantive due process’ doctrine under the 14th Amendment. Thomas agreed the ban should have been struck down but would have done so on the grounds that the Second Amendment is one of the liberties secured to U.S. citizens against the states by the Privileges or Immunities clause of the 14th Amendment. Thomas views ‘substantive due process’ as made up from whole cloth and as having the unfortunate consequence of letting the Supreme Court create new rights willy-nilly out of thin air. The Court has done on more than one occasion, such as the fundamental federal right to abortion created in Roe v. Wade. The Privileges or Immunities of U.S. citizenship, on the other hand, are relatively more circumscribed and much less subject to judicial mischief. Thomas would like to see previous erroneous Supreme Court rulings overturned, substantive due process scrapped, and the Supreme Court getting back to the original text of the Constitution.
Likewise, Thomas views the Supreme Court’s yielding to the New Deal and the consequent expansion of the Commerce Clause and the rise of the administrative state as additional judicial wrong turns that need to be corrected. Those wrong turns have given rise to any number of absurdities like the Montana rancher who dug two ponds on his own land and was imprisoned for supposedly polluting the navigable waterways of the United States.
Previous Constitution Minutes have pointed out instances where we are worse off by straying from the Founders’ design - for example, the ill-advised War Powers Act and the turning of the First Amendment proscription against the establishment of an official religion into a quagmire of hard-to-understand distinctions about what constitutes an endorsement of religion and what does not. All originalists owe a debt of gratitude to Justice Thomas for standing for First Principles even when it means standing alone.
Earlier this month, Attorney General William Barr gave a thoughtful and important speech on the nature of the executive power and the separation of powers under the Constitution. He opened by saying the Democrats’ unrelenting resistance to the legitimacy of the Trump presidency undermines the Rule of Law. But he mostly talked about how the legislative and judicial branches have improperly chipped away at the power of the executive branch in recent decades.
The current Congress has abused its advice and consent power by opposing every single one of Trump’s appointments. There have been 236 cloture votes so far to unblock Trump’s nominees, compared to just 17 in all of Obama’s presidency. Congress has also abused its oversight role, unleashing an avalanche of subpoenas to incapacitate the executive branch. There was a time when Congress respected the executive’s need to hold confidential internal discussions, but Congress now calls assertions of executive privilege obstruction of justice subject to congressional contempt.
The judiciary has also encroached on the Trump presidency by setting itself up as the ultimate arbiter of separation of powers questions between the legislative and the executive, instead of leaving such questions to the political process. Judges have also usurped presidential authority by expanding the scope of judicial review and substituting their own judgment in place of the executive’s in foreign policy and national security matters like the travel ban. Finally, federal district judges have stymied the executive like never before with nationwide injunctions. There have been 40 since Trump was elected, compared to just two in the first two years of Obama’s presidency.
Bottom line, Barr said, is the Left is “engaged in the systematic shredding of norms and the undermining of the Rule of Law.”
The Founders carefully calibrated the executive power and intended for the executive to be independent, not subordinate to Congress. They drew up a Constitution with three co-equal branches and an executive strong and decisive enough to deal with national emergencies and the prosecution of war. They saw how the Articles of Confederation’s deficiencies in this regard almost caused us to lose the Revolutionary War. They put the Article II executive power in the hands of a single person, not a deliberative council. This is called the “unitary executive” and, while the Left may consider it merely a theory, it is nothing more than exactly what the Constitution says.
There is more - a lot more - in Barr’s speech and I commend it to you in its entirety. It’s well worth your time.
[Prepared Text] [Video]
It’s now legal to carry a handgun without a permit in Oklahoma. The law passed in February and took effect November 1st after court challenges failed. Most Oklahomans 21 and over can now carry firearms - concealed or openly - without a background check or training. There are exceptions for illegal aliens and certain criminal convictions, as well as for public buildings, bars, sporting events, and other venues.
Twenty states have some form of constitutional carry. Constitutional carry was the law in all states until the 19th century. The situation reversed by the 20th century when all states, except Vermont, passed concealed carry bans and most states required citizens to get a permit. For this reason, permitless carry is sometimes called ‘Vermont carry’.
It’s no accident that Vermont is the safest state in the country in terms of violent crime statistics. Funny how that works. But don’t expect facts and logic to make a dent on the Left.
It would be better to call it ‘natural rights carry’. If you have to ask permission or get government approval, it’s not really a right, is it? Carry without a permit makes perfect sense when viewed through the lens of natural rights. Rights are not something the government gives you. As an American, you are born with unalienable rights, just like the Declaration of Independence says. Some say these rights come from nature, and call them ‘natural rights’. Others say they come from God, and call them ‘God-given rights’. The point is, YOUR RIGHTS DON’T COME FROM GOVERNMENT, or even the Constitution.
To those who find it strange that U.S. citizens should not have to ask government for permission to own a gun, I ask is it any more strange than free speech or freedom from search and seizure without a warrant based on probable cause? I’ll tell you what would be strange - having to get a license from the government before exercising any of your free speech rights, or paying government a fee to be free from unreasonable search and seizure. THAT would be strange.
Four more states are considering permitless carry. Good! We could use a little more natural rights theory around here. And a little less authoritarianism from the Left, okay Beto? Then I wouldn’t feel like such a target when I have to go to the DMV, a gun-free zone here in my state of Virginia.
In February, I told you about a Supreme Court case where the state of Indiana moved for the civil asset forfeiture of a drug dealer’s $42,000 Land Rover SUV. The drug dealer bought the SUV, not with drug money, but with the proceeds of a life insurance policy on his father who had passed away. The $42,000 purchase price was roughly four times the maximum allowable fine for the offense. The Supreme Court found the forfeiture disproportionate to the crime and sent the case back to the Indiana Supreme Court to reconsider the matter in light of the 8th Amendment’s prohibition against excessive fines. The Supreme Court applied the Excessive Fines Clause to the states for the very first time in this case through the Due Process clause of the 14th Amendment.
At the end of October, the Indiana Supreme Court rejected the prosecution’s argument that any property used in a crime is subject to seizure. Instead, the court ruled a number of factors must be taken into account in deciding whether a forfeiture is ‘excessive’ within the meaning of the 8th Amendment. The factors include the owner’s guilt and the extent of the misconduct, but also the owner’s financial circumstances. The court wrote it would be fictitious to believe that “taking away the same piece of property from a billionaire and from someone who owns nothing else punishes each person equally.” The case now goes back to the trial court for a final determination, after applying the new standard to the facts at hand. The trial court had originally ruled in the drug dealer’s favor in 2015 and ordered the SUV returned to him.
This case is not the end of the civil asset forfeiture issue. Several legislative reforms have been proposed to curb civil asset forfeiture abuse. These reforms include:
A new documentary about Supreme Court Justice Clarence Thomas will be in theaters next February and broadcast on PBS in May. “Created Equal - Clarence Thomas in His Own Words” is the name of the film in which Thomas tells his life story looking directly at the camera.
Thomas was born into grinding poverty in a Gullah-speaking part of Georgia. He went to Catholic school and entered the seminary to become a priest. He left after becoming disillusioned with what he considered to be the Catholic Church’s lack of support for civil rights. At this point in his life, he was a radical Black Power leftist, angry at everything and everybody. But, over time, he came to view affirmative action as condescending and busing as divisive and ineffective.
His transformation complete, he went to work in the Reagan administration then was appointed to the D.C. Circuit Court of Appeals. He was nominated for the high court in 1991. Who could forget the pitched battle at his confirmation hearings and Anita Hill’s shocking allegations that Thomas had sexually harassed her? After relentless brow-beating, Thomas accused Democratic senators at the hearing of conducting “a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas.” Most of the public did not believe Anita Hill and Thomas was confirmed.
Justice Thomas has served on the Supreme Court ever since where he is known as an originalist and a reliable conservative vote. He believes judges should interpret the law, not make it up.
The trailer for the new documentary is online. If you can’t wait for the movie, you might try his memoir My Grandfather’s Son which hit number one on the New York Times bestsellers list in 2007.
Why do we have free speech in this country? Lots of reasons, actually, but tonight I’ll talk about two related reasons that seem to me to get to the heart of the matter.
In Constitutional Law class in college, I was assigned a book called Free Speech and Its Relation to Self-Government, published in 1948 by Alexander Meiklejohn. It is arguably the most influential book on free speech ever written. All I remembered from the book was the author’s position that political speech is the most important type of speech and deserves the most protection.
Recently, I went back and took another look. I had completely forgotten the self-government part. It didn’t stick because I hadn’t been taught about self-government anywhere in my schooling. The bottom was already dropping out of education when I went through grade school in the 1960s. Fast forward 40 years to 2009. I became a Tea Partier and learned about popular sovereignty for the first time.
And this is why we have free speech. Free speech is necessary for self-government - popular sovereignty. We the People rule ourselves. We don’t have a king or a tiny elite ruling over us. Therefore, we must have all the information we need in order to make our sovereign decisions. As James Madison put it:
It takes a long time to cultivate a culture of free expression. It doesn’t come naturally to a lot of people, so it requires maintenance to keep a culture of tolerance for the expression of unpopular viewpoints thriving.
That to me is the heart of the matter. We have free speech because we are sovereigns with the right and obligation of making fully informed decisions, and because we must possess the requisite character to govern ourselves. Every time an unpopular viewpoint is suppressed or people censor themselves, we lose a little bit of our capacity for self-government. Lose enough of that capacity, and we will find we are no longer sovereign, but subjects once more. The forces that want to shut down free speech are in essence trying to turn the clock back to a time when lords and masters, not We the People, ruled the land.
The new Supreme Court term starts this week and some big fights are on the docket.
The first big Second Amendment case in 10 years involves a New York City law - since changed - that attempted to confine gun rights to the home and seven specific firing ranges. Plaintiffs in the case include gun owners who want to go to other firing ranges and another gun owner who wants to transports guns between two homes. The Supreme Court could decide to dismiss the case as moot because there’s a new law changing all of this, or use the occasion to expand gun rights.
An abortion case involves a Louisiana statute almost identical to one the Court struck down in 2016 requiring abortion doctors to have admitting privileges at a nearby hospital. The 2016 Court said it’s difficult get the credential and it does little to make abortions safer. This time around, the Court could follow the same logic and declare the Louisiana law unconstitutional as an “undue burden” on abortion rights, using standard analysis from the 1992 Planned Parenthood v. Casey decision. But the Court could affirm the judgment from the 5th Circuit below upholding the statute - opening the door to more health regulations in the abortion industry - or even overturn Roe v. Wade entirely.
Three LGBTQ employment cases are before the Court this term - two involving gay men and one involving a transgender who were all terminated from their jobs. At issue is whether the word ‘sex’ in Title VII of the Civil Rights Act can be puffed up by the courts to include sexual orientation and gender identity even though Congress didn’t write it that way. If the Supreme Court plays along, then employment law in these cases would get federalized and states could no longer make their own decisions in these matters. I bet there are a lot of lawmakers around the country, who have had plenty of time to take up this issue, who wish the Supreme Court would take this problem off their hands so they don’t have to decide it or face the voters on it.
There are three DACA cases before the Court. It’s pretty much conceded at this point that President Trump has authority to terminate the DACA program and could do so tomorrow, even though these cases are pending. The lower courts in these cases all agreed that the judiciary may not review an administration decision on the DACA program made for policy reasons. The problem is the DHS memo stating the administration’s intent to wind down DACA gives a legal reason, not a policy reason, for doing so. This is pretty arcane, but you may recall the Court split 4-4 on the legality of the similar DAPA program - Deferred Action for Parents of Americans. It could be the Court will use the occasion to rule more broadly on whether such programs are legal in the first place.
Finally, depending on when the 5th Circuit makes its decision, the Texas Obamacare case could be before the Supreme Court this term. The argument follows John Roberts’ logic in the Obamacare decision in reverse. Roberts’ upheld the individual mandate as a tax. But the individual mandate tax has been zeroed out and, in effect, no longer exists. The individual mandate is otherwise an unconstitutional overreach offending the Commerce Clause. Because the mandate is now unconstitutional and was the essential linchpin of the entire law, the entire law should be struck. Stay tuned on this one.