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.
Brett Kavanaugh is not a rapist; he’s a witch! You didn’t know that? I hereby accuse Brett Kavanaugh of Conjuration, Witchcraft, and dealing with Evil and Wicked Spirits.
He shall be tried in secret. Hearsay will be admissible. All accusations, no matter how unreliable – like his sexual encounters with demons - shall be used against him. He will not be allowed to defend himself. [American Criminal Courts: Legal Process and Social Context by Casey Welch, John Randolph Fuller] And there will be no presumption of innocence; In fact, he will be presumed guilty unless he can prove he is innocent. [Just a Family History by Glenn L. Bower, p. 206]
We heard a lot about the presumption of innocence during the Kavanaugh confirmation process. Tonight, I’ll tell you the story of the presumption of innocence and what can happen without it.
The history starts with the ancient Babylonian Code of Hammurabi which put the burden of proof on the accuser. The presumption of innocence was a feature of Roman criminal law. Today, the 5th and 14th Amendment Due Process clauses, by Supreme Court interpretation [Coffin v. United States, 156 U.S. 432 (1895)], protect the presumption of innocence. In our system, unlike the Salem witch trials, you are innocent until proven guilty.
The absence of the presumption of innocence is associated with some of the worst events in human history. In the court of the Spanish inquisition, for example, the accused were presumed guilty and it was up to them to prove themselves innocent. [Equity and Law by María José Falcón y Tella, p. 228] The Inquisition also tortured confessions out of religious and ideological opponents of the Inquisitors.
The trials of the French Revolution, if you can call them that, were patterned after the Inquisition – no jury, no compulsory process for defendant’s witnesses, and no presumption of innocence. [A Manual of American Ideas by Caspar T. Hopkins, 234-5] These proceedings were directed at political enemies. Wave after wave of revolutionaries were sent to the guillotine after falling out of power.
There was no presumption of innocence in the English Star Chamber. A finding of guilt could be based on the silence of the accused. [Presumption of Innocence in Peril: A Comparative Critical Perspective by Anthony Gray, p. 12]. The Star Chamber was used to control the king’s political enemies. [Criminal Evidence: Principles and Cases by Thomas J. Gardner, Terry M. Anderson, p. 175].
There was no presumption of innocence in the show trials of Stalin’s Great Terror [The Furies: Violence and Terror in the French and Russian Revolutions by Arno J. Mayer, p. 653]. Che Guevara, t-shirt boy for the revolution, perhaps said it best: “I don’t need proof to execute a man, I only need proof that it’s necessary to execute him.” He also said, “To send men to the firing squad, judicial proof is unnecessary … These procedures are an archaic bourgeois detail. This is a revolution!” This is a man who once wrote in a letter to his father, “I really like killing.” And so he did. Che personally supervised many executions while running Castro’s La Cabaña prison.
It’s no accident that these examples from history all involved political or ideological opponents. The presumption of innocence is one of the first casualties of a totalitarian mindset when political orthodoxy is threatened. So what are we to make of the fact that so many Americans now are willing to presume that Supreme Court Justice Kavanaugh is guilty, even though his accusers could provide no evidence, no witnesses, and no corroboration. Gang rapes at party after party – really? These are the same people who think nothing of suborning perjury and tampering with witnesses, to wit Leland Keyser who felt pressured to change her story to help her friend Christine Blasey Ford. If these totalitarians get their way, there will be more Salem witch trials ahead. No man or boy – or women or girl – will be safe.
I say we put Justice Kavanaugh on the rack until he confesses to his political and ideological crimes. It’s obviously sorcery that put him on the Supreme Court and we need an FBI investigation to get to the bottom of it.
The 2016 election was the fifth time in history that the U.S. elected a President who lost the popular vote. The last time that happened - Bush v. Gore in 2000 – a serious movement was begun to get rid of the Electoral College. Tonight, I’ll review the reasons we have the Electoral College and bring you up to date on the main effort to elect future Presidents by popular vote.
Article II, Section 1 of the U.S. Constitution set up the first version of the Electoral College where, over-simplifying a bit, the candidate getting the majority of the electoral votes became President and the runner-up became Vice-President. But there were problems with the elections of 1796 and 1800. In 1796, the President and Vice-President elected under this system were from different political parties, which didn’t work out so great. And in 1800, the election went to the House of Representatives where it took 36 ballots to get Thomas Jefferson elected President. The 12th Amendment was ratified in 1804 to refine the process.
Lots of reasons have been put forth why we have the Electoral College and why it’s a good thing:
Today, the National Popular Vote Compact has gained ground since the last time I spoke to you about it. Under the compact, states give their Electoral College votes to the candidate who wins the national popular vote, not the state’s popular vote. The compact has been joined by 11 blue states and the District of Columbia which, together, have 172 electoral votes, nearly two-thirds of the 270 votes required for the compact to take effect. The compact has been called an end-run around the Constitution because, with 270 electoral votes, future Presidents would effectively be chosen by popular vote, not by independent electors as they are today.
Many fear that no conservative President could ever be elected again if the compact picks up a 270-vote majority. However, the results are not a foregone conclusion. First, the compact cuts both ways. In 2004, under the compact, California’s electoral votes would have gone to George W. Bush, even though John Kerry won 1.2 million more votes in California than Bush did. This is because Bush won the national popular vote that year.
Also, you can bet that people would sue to prevent the National Popular Vote Compact from taking effect, and the Supreme Court would ultimately have to decide the issue. States can join compacts under Article I, Section 10 of the Constitution, that’s not in dispute. But some have argued that congressional consent would have to be obtained before the compact could be enforced and any implementation of the compact without that consent would immediately be challenged. Others argue that what the compact is attempting to do can only be done by constitutional amendment. I could even see small states attempting to secede from the union in the event the compact takes effect, because it would undo one of the inducements that drew them into the union in the first place. It could be argued they have settled expectations in this area that cannot be undone by a conspiracy of larger states.
Regardless of what you think of the Electoral College, there’s no denying that it has given us seamless transitions of power without conflict or bloodshed throughout our entire history – and that’s no small feat. Supporters of the National Popular Vote Compact and direct democracy should think twice before they upset the tried and true, the carefully balanced design of the Electoral College.
The Tea Party movement started from a belief that Washington is out of control. This belief led Tea Party after Tea Party to adopt the core value of limited government under the Constitution. But there is a type of local and state agency that is also out of control, and offends our core values, as well.
I’m talking about local and state human rights commissions. Critics say they are runaway trains, run by left-wing political hacks, untrained, who think nothing of trampling on the separation of powers, free speech, and due process rights. Masterpiece cake baker Jack Phillips was the victim of the Colorado Civil Rights Commission. Some of the commissioners stated their view that there is no room for religion in the public sphere and, further that Phillips’ faith was “despicable”. They compared his widely-held religious views to defending slavery or the Holocaust. The Supreme Court struck down their enforcement action against Phillips because they were openly hostile to religion.
Phillips is not the only victim. Earlier this month, the Pennsylvania human rights commission took upon itself the power to puff up a state statute forbidding discrimination on the basis of ‘sex’ to include ‘sexual orientation’ and ‘transgender’ claims. Also this month, the Connecticut human rights commission ordered all employers in the state not to discriminate against job applicants with dishonorable discharges from the military. I don’t know about you, but these sure sound like questions for the state legislature to me.
A recent panel presentation reviewed a number of other cases from around the country. In Fort Worth, the commission has the power to investigate and issue determinations. In New York City, the commission can levy fines and file criminal proceedings. In Orange County, California, the commission was prepared to condemn a university instructor for hate speech without ever watching the videotape of the event in question. In Anchorage, Alaska, the head of the commission swore out a complaint against an attorney who was representing someone before the commission for remarks the attorney had made to the media.
In Oregon, the staffers bringing the claims and the administrative law judge – who is not a lawyer - work for the same agency, breaching separation of powers. Procedural safeguards are limited – discovery is minimal and the rules of evidence don’t apply – you can be done in by hearsay. In one case, the commissioner had made prejudicial statements to the media, but a motion to disqualify him for bias was rejected. In another instance, the defendants had a gag order placed on them – they could not defend themselves or discuss their beliefs in the media while the case was pending.
This is just a sampling of what has been going on with these commissions. So what can be done about it?
Republicans in Colorado introduced legislation to change the way human rights commissioners are appointed, beef up the oversight they receive, and allow parties to skip the commission altogether and go right to court. They later agreed with Democrats just to increase the size of the commission and subject it to a legislative audit. I don’t know where things stand in Colorado at the moment, but now would be a good time for activists to agitate for stopping unelected runaway commissions in other states that are misusing 14th Amendment Equal Protection to engage in social engineering and impose their left-wing political agendas on the rest of us.
“You have the right to remain silent. Anything you say can and will be used against you in a court of law.” Anyone who watches TV in America can recite these words in their sleep. But what they actually mean in practice can surprise you.
Take the highly publicized case of Brendan Dassey who was convicted of murder and other offenses based on a confession he made when he was 16. His story was made into a miniseries on Netflix. His lawyers argued that Brendan is intellectually challenged and susceptible to suggestion. Brendan has a low IQ and tests in the 7th percentile. They say detectives spoon-fed him answers that were incriminating and consistent with the evidence, which Brendan then adopted. No lawyer or parent was present. The session was recorded and one report said he appeared to be unaware of the gravity of his situation. A judge would later write, “What occurred here was the interrogation of an intellectually impaired juvenile.... Dassey was subjected to myriad psychologically coercive techniques....” One of those techniques was detectives repeatedly saying they already knew what had happened. This judge called Dassey’s conviction “a profound miscarriage of justice.”
Was this a voluntary and truthful confession, or was it coerced? The Supreme Court acted on the case earlier this year, but before turning to that, let’s first look at the Constitution and the history of the right against self-incrimination.
The Fifth Amendment states that no person “shall be compelled in any criminal case to be a witness against himself....” The right against self-incrimination applies in state criminal cases through what is called the incorporation doctrine. [Chemerinsky, Constitutional Law (4th ed.), p. 516]
The history of compulsory self-incrimination goes back at least as far as the Spanish Inquisition. It was used in England for 400 years after the Magna Carta. [The Making of America, pp. 705-06] The English Star Chamber used torture to obtain confessions. In 16th and 17th century England, anyone refusing to swear their innocence was considered guilty. Suspected Puritans were pressured to take the oath and reveal the names of other Puritans. The Puritans began to resist the interrogations and brought the idea of a right against self-incrimination with them when they fled to the New World, where the right ended up in our Constitution.
Back to Brendan Dassey and the question of whether his confession was voluntary, a panel of the 7th Circuit Court of Appeals overturned his conviction in June of 2017, but the full court reinstated it in December of that year. The Supreme Court turned down the case in June of this year, declining to hear it.
In arguing for that result, the state of Wisconsin asserted that the confession was voluntary and properly obtained. The detectives were sympathetic and encouraged Dassey to be truthful. Another judge along the way wrote:
Dassey was convicted of first-degree intentional homicide, second-degree sexual assault and mutilation of a corpse. He was sentenced to life in prison and won’t be eligible for parole until 2048. He still has supporters, though, who hope to spring him before then.
One final note: Tomorrow is Constitution Day. Celebrate the fact we have a Constitution that prevents tyranny and protects our rights, like our right against self-incrimination. Sure, there are tough cases where it’s hard to decide whether a confession is voluntary or coerced but, still, having the right sure beats being tortured in the Star Chamber, doesn’t it?
A speech he gave last year gives a pretty good indication of the judicial philosophy of Brett Kavanaugh, the man likely to be the next Supreme Court justice.
Kavanaugh led off his speech with this: “The Framers believed that in order to protect individual liberty, power should not be concentrated in one person or one institution.” Bingo! That is the key point – preventing the concentration of too much power in too few hands. That he led off with this point is encouraging. He elaborated by showing a healthy respect for the separation of powers and federalism.
Then he took up the all-important question of who should be in charge of changing the Constitution. Kavanaugh said he believes “that changes to the Constitution and laws are to be made by the people through the amendment process and, where appropriate, through the legislative process—not by the courts snatching that constitutional or legislative authority for themselves.” In other words, no living and breathing Constitution made up by the courts. Instead, Kavanaugh said, the Constitution lives and breathes every time the amendment process is used and our elected representatives play their part.
More clues come from his discussion of former Chief Justice William Rehnquist, whom Kavanaugh calls his “judicial hero”. Kavanaugh spoke favorably of how Rehnquist retrenched from the rulings of the activist Warren court of the 1960s. Rehnquist opinions carved out exceptions to the exclusionary rule that keeps evidence out of criminal trials. Rehnquist also found exceptions to Miranda rights which keep prosecutors from using statements of criminal defendants made before they are advised of their right to remain silent and to an attorney. Rehnquist criticized the notion of separation of church and state, and wrote opinions much friendlier to religion than his predecessors did. Rehnquist also wrote opinions that ‘put the brakes’ on the power of the federal government under the Commerce Clause, starting with the first principle that the Constitution limits the federal government to a few defined enumerated powers. Rehnquist also shied away from the Supreme Court declaring willy-nilly new fundamental rights under the Due Process Clause. Rehnquist refused to find an unenumerated federal right to assisted suicide because it was not “deeply rooted in the nation’s history and tradition.” In other words, the Supreme Court should not be engaged in social engineering. Rehnquist tried to rein in federal agencies, writing in dissent that delegating agencies too much power to decide important policy questions is unconstitutional and that the big stuff should be up to Congress, not the agencies.
If you’re looking for more clues as to how Judge Kavanaugh will rule, he gave a second speech last year outlining the difficulties with viewing judges as mere umpires who should just call balls and strikes. Statutes are ambiguous and constitutional rights have exceptions. There’s no objective way to come up with the right answer in cases involving each. Judges can’t help but bring their subjective policy preferences to the interpretation of both. At the end of the speech, Kavanaugh says he doesn’t have all the answers.
He may not have all the answers but still, after reading both speeches, I have a hard time seeing Brett Kavanaugh evolve over time into something unrecognizable, as has happened on the Supreme Court before. Mark Levin wrote in Men in Black about the leftward drift of Justices Harry Blackmun and Anthony Kennedy. For the moment, at least, it looks like Brett Kavanaugh will uphold the Tea Party core value of limited government under the Constitution while on the Supreme Court, which puts us in a whole lot better place than if it had been a President Hillary Clinton getting to make this nomination.
It was reported this last week that CNN and MSNBC used the word ‘impeachment’ 222 times in a single day. Tonight, we take a closer look at the constitutional standards for impeachment.
Article II, Section 4 of the U.S. Constitution says the President, the Vice President, and all civil officers of the United States shall be removed from office on impeachment by the House and conviction by the Senate for treason, bribery, or other “high Crimes and Misdemeanors”. Treason and bribery are fairly clear-cut, but what are high Crimes and Misdemeanors?
Basically, they are whatever Congress says they are, because impeachment is at root a political process, not a criminal process. But this should not mean that anything goes when impeaching a President.
The Framers of the Constitution quite consciously borrowed the term from England where it was a well-established legal term of art in use for 400 years. It was used to describe a delegation of power to legislative bodies to determine and punish official misconduct on the part of a wide variety of executive and judicial officers. Over those 400 years in England, the term was used in practice to check the power of the King’s ministers and judges for disobeying the laws, infringing the rights of the people, interfering with the prerogatives of Parliament, abusing the power of the office, and being incompetent or corrupt. This went well beyond criminal offenses, to political crimes like subverting the system of government.
Interestingly, our Framers went beyond the English practice and applied impeachment to the chief executive, whereas the British did not subject their King to this remedy.
The Framers considered other terms – “malpractices or neglect of duty”, “corruption”, “corrupting his electors”, “treachery”, “abusing his power”, “perfidy”, “peculation” (which means self-dealing), “oppression”, “betray(ing) his trust to a foreign power” - but ended up rejecting them all. George Mason argued that these other terms were not broad enough and left many grave offenses out, like “subverting the Constitution” short of treason. “Mal-administration” was considered, but it was decided it was too vague. So they settled on “high Crimes and Misdemeanors” in part because it was defined by 400 years of English usage and practice to include important concepts like abuse of power, and to exclude ordinary political disagreements. Thus, it is clear that the term does NOT mean crimes and misdemeanors in the ordinary sense of today’s criminal law.
This broad understanding of “high Crimes and Misdemeanors” was reflected in the ratification debates in the states after the U.S. Constitutional Convention in Philadelphia in 1787. But we will have to wait for our own history to unfold further before we will know the precise meaning of the term in American constitutional law.
“The Original Meaning of “High Crimes and Misdemeanors” (2 parts)
Week before last, two socialist authors were granted space in the august New York Times, no less, to push their poison that the U.S. Constitution is an “outdated relic” expressly intended to subvert democracy.
The authors are an editor and writer at Jacobin magazine, a socialist publication which doesn’t mind engaging in the quintessentially capitalistic practice of selling advertising.
The authors make a number of blithe assertions which I will demolish shortly. But, overall, to hear the authors tell it, you’d think the Constitution had unleashed a bloody Reign of Terror. Oh, wait a minute, that was the Jacobins in France in the socialist French Revolution of 1789. Thanks to the authors’ namesakes, France didn’t have a stable government again for 75 years.
The authors assert that the Constitution is “the foundation for a system of government that rules over people,” rather than a means of popular self-government. This shows a complete misunderstanding of the Constitution. The Constitution begins with “We the People” because we have popular sovereignty. We the People rule ourselves; we don’t have a King George ruling over us.
But the authors are right in one respect. The Constitution did not set up a pure democracy, and good thing it didn’t. The Founders were concerned with preventing mob rule and the tyranny of the majority, both of which develop under pure democracy. Even with all our system’s checks and balances, we’ve had instances in this country where one side has gotten too powerful and rammed stuff down our throats, like Obamacare and the New Deal. Do we really want modern-day Jacobins ramming single payer down our throats with real death panels this time - guillotine squads? That’s why the Founders gave us a Republic, as Ben Franklin famously said - to temper the passion of factions with ways for cooler heads to prevail. Warring factions gave England a dictator-for-life, Oliver Cromwell. The Founders knew this history and worked around it accordingly. Property rights, which the socialist authors criticize, actually reinforce self-government, because property gives people freedom and independence, power they wouldn’t have if the government owned everything as in a socialist system. Property rights are best understood as a pillar of popular sovereignty.
The authors say the Constitution prevents redistribution of wealth and the creation of new social guarantees. This is just crazy talk. The authors act as if as if the New Deal, the Great Society and other redistributionist programs never happened, and that we never racked up a $21 trillion national debt as a result.
The authors criticize “the Bill of Rights’s incomplete safeguards of individual freedoms.” There’s something bone-chilling about Jacobin socialists talking about safeguarding individual freedom. They are the self-proclaimed descendants of the French Jacobins who chopped people’s heads off after so-called ‘trials’ that didn’t have any due process whatsoever, or even pretend to dispense justice. When the masters of mob rule start talking about protecting individual rights, run for the hills.
Newt Gingrich just wrote about the horrors of the French Revolution for Fox News. He referred to a book in which the author recounts a story about the French Revolution that tells you everything you need to know about Jacobin socialists: “a woman was charged with the heinous crime of having wept at the execution of her husband. She was condemned to sit several hours under the suspended blade which shed upon her, drop by drop, the blood of the deceased whose corpse was above her on the scaffold before she was released by death from her agony.” This is the intellectual pedigree of the Jacobin authors, whether they want to admit it or not.
The authors don’t want to throw out the entire Constitution like their more revolutionary comrades farther Left, just amend it. Specifically, they recommend a unicameral one-house legislature, and making it easier to amend the Constitution through national referendum. There are good reasons why the Framers didn’t give us either one.
They had the example of the unicameral Pennsylvania legislature which ping-ponged between partisan extremes after each election. This experience and others convinced the Framers that an upper house representing economically successful people was necessary to tame the passions of the bulk of the population who were seen as represented by the lower house. The Framers had the wisdom of the ages on their side on this one. Read the history of political theory from antiquity on down and you will find something called the “mixed constitution” – a government that mixes democracy with meritocracy, that is, the elements of popular representation with some kind of contribution by people who are more versed in governance than the average Jane or Joe. The history of political theory shows that you can’t have political stability without allowing both these elements to participate in government. Leave either element out and you will have nothing but fractiousness and trouble. Our two-house Congress was the Framers’ version of a mixed constitution which succeeded, unlike the French Jacobins, in ensuring political stability.
As for amending the Constitution more easily through national referendums, that would be more problematic than democratic. The Founders deliberately made it hard to amend the Constitution, so people don’t get carried away. But it’s not THAT hard. As I mentioned in a previous webinar [March 19, 2017], it only took one college student 10 years to get the 27th Amendment passed and ratified.
Let me end with three cheers for our Republic and our mixed constitution. It is because of them we have limited government, not the stronger federal government the authors want. No guillotines here.
As for the authors - Off with their heads! Figuratively speaking, of course. Unless I can gather a big enough mob.... Just kidding!
Last night, I watched Invalidated, Tea Party Patriots’ new documentary about the patent system. The documentary does a good job laying out how the Patent Trial and Appeal Board – PTAB, as it’s known - is harming U.S. inventors and allowing American ingenuity to slip away to other countries. Ironically, communist China might end up with a stronger patent protection system than the United States.
Article I, Section 8 of the U.S. Constitution guarantees patent protection, giving inventors exclusive rights to their discoveries. The documentary emphasizes that investors always ask inventors whether they have a patent and will not put money behind an invention unless they do.
Enter the America Invents Act of 2011, which established PTAB. PTAB is an administrative tribunal that has the power to invalidate patents that have already been granted, even if they have been upheld by courts and juries. As shown in the documentary, one wing of the U.S. Patent and Trademark Office awards patents after thorough examination while another wing of the USPTO – PTAB – is very much inclined to invalidate them. This works to the advantage of shady operators and big companies who use PTAB to steal inventors’ ideas and rob them of any hopes of profiting from their own inventions.
Arguments against the constitutionality of PTAB were heard in the Supreme Court this year. Jenny Beth Martin discussed the Oil States case in an editorial late last year. Unfortunately, the Court went on in April 2018 to reject certain constitutional challenges to PTAB. Relying on previous Supreme Court precedent, Justice Clarence Thomas writing for the majority reiterated that the Supreme Court considers patents a mere “public franchise” like a concession to operate a city bike-share program – thus relegating patents to second-class status instead of recognizing them as full-fledged property rights. As second-class rights, patents can be awarded and invalidated wherever Congress locates that power, and courts need not necessarily be involved, thus shooting down the separation of powers argument.
The Supreme Court said that prior cases calling patents ‘property rights’ are “best read as describing the statutory scheme that existed at that time.” Also, the Framers had to have been aware that an administrative Privy Council had the power to cancel patents in England in the 18th Century, but did not expressly exclude such administrative action in the Patent Clause in the U.S. Constitution. The Court did say that patents remain property rights for purposes of the Due Process and Takings clauses. Gee, why am I reminded of the Obamacare case where the Court said it was a tax but not a tax? Such judicial backflips suggest that the Court just wanted to reach a certain result and nothing was going to stand in its way.
The Court finished off its opinion by giving short shrift to the 7th Amendment challenge under the same reasoning. Because patents are second-class rights that can be awarded and invalidated administratively, there is no right to a jury trial even though the 7th Amendment explicitly states that the right to take your case to a jury is guaranteed in lawsuits where the amount in controversy exceeds $20. Losing a patent can cost an inventor millions, if not billions, of dollars.
So here we have the Supreme Court treating patent rights like taxi medallions, which a taxi commission can grant or take away on a whim because they’re not really property rights. That just seems wrong to me, since patent protection was explicitly written into the Constitution and taxi medallions are not. What part of “exclusive Right” in the Patent Clause does the Supreme Court not understand?
It seems wrong to Justice Neil Gorsuch, as well. He noted in his dissenting opinion in the Oil States case that the practice of administratively canceling patents in the Privacy Council had disappeared by 1746, decades before the U.S. Constitution was written. Patents may have started as “public franchises” in English law way back when, but were accorded much more respect by the time of our Founding than were ordinary “public franchises” – like government-granted monopolies to operate toll bridges. Patent holders at that time, for example, had the right to go before an independent court. After Oil States, they still do but the judgments they receive in court can be wiped out later by the administrative tribunal PTAB.
That’s just bizarre, which suggests to me another constitutional challenge against PTAB which has yet to be made – if patents are still property rights for due process purposes as Justice Thomas wrote, how can they be taken away by an administrative agency after a court has already upheld them? How is that not a denial of due process of law? It might not be double jeopardy, because it’s not a criminal matter, but it’s every bit as unfair as trying a criminal defendant twice for the same crime.
Folks, we have another administrative monster on our hands, every bit as bad as IPAB under Obamacare – the decisions of which, purportedly, Congress could not reverse – and the CFPB (the Consumer Financial Protection Bureau) which was set up with one person at the helm not subject to removal by the President. Where does Congress come up with this stuff?
The Supreme Court won’t be persuaded to elevate the status of patent rights any time soon, so the PTAB mess cries out for a legislative fix. Representative Thomas Massie, Republican of Kentucky, has introduced a bill to repeal PTAB. Massie and Jenny Beth Martin discussed the bill and other legislative fixes in a joint editorial in July 2018.
I highly recommend Tea Party Patriots’ documentary. It’s obvious something needs to be done about PTAB. Our prosperity and economic freedom depend on it.