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.
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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.
The New York City Commission on Human Rights just outlawed the use of the term “illegal alien”. The Commission will fine you $250,000 if you use the term.
Here’s how their Guidance document justifies the new rule: “‘Alien’ — used in many laws to refer to a ‘noncitizen’ person — is a term that may carry negative connotations and dehumanize immigrants, marking them as ‘other’..... The use of certain language, including ‘illegal alien’ and ‘illegals,’ with the intent to demean, humiliate, or offend a person or persons constitutes discrimination.”
As the Commission admits, the term “illegal alien” is used in many laws. It appears in six places in the U.S. Code. (See here and here.) I bet you never knew your Congress was a bunch of haters. They wrote the term into law six times. They just couldn’t help themselves.
I jest, but let’s play along and make-believe the term “illegal alien” really is hate speech. So what? Hate speech is protected by the First Amendment. You can say all the hateful things you want. The Supreme Court has been very clear - you have the right to say hateful things, no matter how much they offend people. Remember the Westboro Baptist Church that showed up at funerals picketing against homosexuality? Their speech was hateful, but it was protected. Remember the Slants trademark case where an Asian-American rock band was allowed to get a U.S. trademark even though ‘slants’ is a derogatory term that offends people? Protected.
In the Slants case, Justice Alito wrote for the Court:
The New York City Commission has a history of running roughshod over the First Amendment. It previously mandated the use of preferred gender pronouns despite the obvious constitutional problems of forcing people to use terms contrary to their beliefs and in support of a government-mandated ideology.
The Commission is out of control. They admit the term “illegal alien” is used in law, but they don’t care. They know their new rule is unconstitutional but damn the torpedoes, full speed ahead! You just have to fall in line or they’ll crack your head with a $250,000 fine.
Here’s what needs to happen. Somebody in New York needs to challenge this travesty. When the Commission sues them, they need to fire back just as hard as they possibly can. Counter-sue the government officials involved personally for acting ultra vires - beyond the law. Sue them for damages for denying people their civil rights. And go after the Commission’s lawyers’ law licenses - haul them up on ethics charges for filing baseless claims to enforce a directive they know is completely unconstitutional.
Either this, or more civil rights commissions will issue more speech codes and we will watch our freedoms slip away.
I’m very much looking forward to being with you at Tea Party Patriots’ ‘Stop Socialism - Choose Freedom’ rally on Thursday.
I went back through the Constitution Minutes to see what I had written about socialism on prior occasions. This is what I found:
People who have considered the question have cited various provisions in arguing that socialism is incompatible with the Constitution. For example, Article 4, Section 4 of the Constitution says the United States shall guarantee to every state a republican form of government, not a dictatorship. Article 1, Section 8 sets up limited government and says Congress only has certain enumerated powers. Under the 5th Amendment, no one can be deprived of property without due process of law. If the government takes property, it’s supposed to provide just compensation. This would seem to prevent the wholesale nationalization of industries under socialism.
Moreover, early Supreme Court jurisprudence strictly enforced property and contract rights on natural law grounds. [Chemerinsky, Constitutional Law, 4th Ed., p. 622 – citing, e.g., Fletcher v. Peck from 1810] The rationale changed to the due process clause in the Lochner era, but the Court continued to strike down state laws that regulated private business.
But Justice Oliver Wendell Holmes wrote a famous dissent in the Lochner case declaring that the “constitution is not intended to embody a particular economic theory, whether of paternalism … or of laissez faire.”
Then the New Deal changed everything. The Supreme Court began upholding federal statutes regulating business. The last time the Supreme Court struck down a regulation on constitutional due process grounds was 1937. [Chemerinsky, p. 641]
If socialism means equalizing incomes, we have a progressive income tax no one has successfully challenged on constitutional grounds. What principle stops progressive taxation until it completely levels everyone’s income? I can’t think of one.
If socialism means government ownership of the means of production, we’re already half way there in terms of a constitutional stamp of approval. The Chrysler bondholders were wiped out after the financial crisis of 2008. Thanks to Obama, their money went to UAW retirees who were unsecured creditors. And it was all considered perfectly legal. AIG shareholders are still in court trying to get back what they believe was wrongfully taken from them in the financial crisis.
And I haven’t even mentioned the amendment process yet. FDR proposed a Second Bill of Rights guaranteeing everyone a job, a home, and healthcare, among other things. The Second Bill of Rights would even guarantee a right to adequate recreation. You can’t have Utopia without adequate recreation, right?
We have a Supreme Court that turns night into day and makes up rights out of whole cloth. Why not a right to an equal income? If Obamacare is a tax and, at the same time, not a tax, anything is possible at the Supreme Court.
The delegates [to the 1787 Constitutional Convention] did not put any particular economic system into the Constitution, or rule any out. If you want to preserve limited government and free markets, don’t count on the Constitution to keep socialism at bay. Roll up your sleeves and get to work.
I wrote that in 2017. Now, just for a little teaser about what I have coming up for you: I’m reading the proposed constitution of the Revolutionary Communist Party of the United States. It’s almost a hundred pages long, whereas the entire U.S. Constitution can be read in little over an hour. These Leftists are nothing if not wordy. But there are some real doozies in Revcom’s proposed constitution I’ll be telling you about in coming weeks, starting with one-party rule. Yep, they wrote themselves into their own constitution all over the place as being in charge of, among other things, political nominations and the military. No other political party - or even the possibility of another party - is mentioned.
So, three cheers for the U.S. Constitution and its enshrinement of limited government which allows political parties of all stripes to exist - even ones like Revcom that want to destroy the country as we know and love it.
Stop Socialism - Choose Freedom!
The title of Justice Neil Gorsuch’s new book, due out Tuesday September 10th, will be familiar to every Tea Partier: A Republic, If You Can Keep It.
The book is a collection of essays, speeches, past opinions, and thoughts on the separation of powers, civil liberties, and the role of judges under the Constitution. Gorsuch believes originalism and textualism are the best guides to interpreting the Constitution and protecting our freedoms.
Justice Gorsuch is “everything conservatives hoped for and liberals feared,” the liberal dean of the UCal Berkeley law school, Erwin Chemerinsky, told the Washington Post. While on the Supreme Court, Gorsuch voted to uphold the travel ban on certain Muslim and other countries, to add a citizenship question to the census, and to allow a ban on transgenders in the military to go into effect. But he is a maverick, sometimes siding with the liberals, for example, in a case overturning a precedent allowing local and federal prosecutions for the same offense. Gorsuch is not afraid to revisit the Court’s earlier jurisprudence. In his two terms on the Court, he has voted to overturn, or suggested taking a fresh look at, established precedent 11 times.
But the most interesting aspect of the book to me is the connection he draws between civic education and mutual respect in political discourse on the one hand, and self-governance and popular sovereignty on the other. He is distressed that people don’t understand the basics of the separation of powers. “Only about a third of Americans can identify the three branches,” Gorsuch told the Washington Post. “Another third can only name one branch of government.” Ten percent thinks Judge Judy serves on the Supreme Court, he went on to say.
Gorsuch is worth reading because he discusses the duty of every American to help maintain the Republic. It is not a given we will always have a Republic. It takes work to maintain one. It’s either that or go back to having a tiny elite rule over us because we are too lazy to govern ourselves.
Gorsuch is also worth reading because he is young - he just turned 52 - and prolific: he writes more pages of opinions than any other Justice currently sitting on the Court. This is somebody who is going make his mark on constitutional jurisprudence well into the next generation. He will influence the direction of the Court and the country on important issues of public policy for decades to come.
The Constitution is not only one of America’s founding documents, it can be a really good engagement tool for your festival booths.
My Tea Party created a Constitution quiz and it was a big hit at the Irish festival in our area yesterday. We had as many as eight people taking the quiz at one time. A big sign - How Well Do You Know Your Constitution? - and a scoreboard underneath drew people to our booth.
The questions, ten in all, started off easy - What is the age requirement for U.S. President? What amendment protects the right to keep and bear arms? The questions got harder from there: True or False - Laws enacted by the States are the supreme law of the land. True or False - Members of Congress can give themselves a pay raise before the next election.
A couple of the questions were disputed by Constitution geeks. For example: Does the General Welfare clause authorize social spending? We asked the question because actions justified by the General Welfare clause are supposed to benefit all the people, not just a subset like people who receive government checks, yet the General Welfare clause is being cited more and more often now to justify all kinds of things, including more social spending. Two people objected to the question, arguing that writing government checks to welfare recipients ultimately benefits all the people. So we will drop out problematic questions in future events because the point of the exercise is to educate the public about the Tea Party and our core values, not spend 20 minutes debating fine points with Constitution geeks. After scoring each individual who took the quiz and placing a colored dot on the scoreboard to mark their results, we quickly pivoted to asking what they think the Tea Party stands for. Many had never talked to a Tea Partier before. We gave each individual a card expressing our core values and giving our website address.
It was very gratifying to see so many people who know next to nothing about the Tea Party display such an interest in the Constitution. It is often said the Constitution is one of the few things left that all Americans have in common. The tremendous interest the quiz generated at our booth yesterday certainly shows lots of ordinary Americans are still very attached to our Constitution - and this was in a Deep Blue area! There’s hope for this country, yet.