1A Religion: Christian student group wins in court, can choose own leaders
1A: federal judge upholds Arkansas anti-BDS law forbidding state agencies from dealing with companies that boycott Israel (other courts have gone the other way)
5A Fundamental Rights: failure of South Dakota bill affirming parental rights to resist the transitioning of their gender-confused kids should terrify parents
Amendment to affirm a constitutional right for parents to “direct the upbringing, education, and care of their children” introduced in the House
14A Due Process: Supreme Court declines to stay execution of Muslim inmate in Alabama who had sued to have imam present in death chamber.
1A: forcing students to fill in world history course worksheet with ‘no god but Allah’ does not establish a religion or compel speech (4th Circuit) #CreepingSharia
Free Expression: Islam very successful in suppressing criticism of its treatment of women; feminists overlook “child marriages, forced marriages, female seclusion, honor killings, gang rapes of infidel women, or the enslavement and sale of females for sex slavery.” Not to mention FGM.
Free Expression: English woman arrested for ‘misgendering’ trans activist on Twitter
Free Expression: tech giants that punish social media users for ‘misgendering’ are killing freedom of expression
1A Right of Association: Women suing for sexual harassment at Yale fraternities seek to have them opened to women. #ABridgeTooFar
1A Right of Association: the section of the Delaware Constitution requiring judges to be Republican or Democrat is unconstitutional
1A: gun groups file suit against New Jersey for law criminalizing the sharing of gun blueprints online
2A: map shows many more states now allowing concealed carry than in 1986
2A: Washington State sheriff refuses to enforce state’s restrictions on ‘assault rifles’
5A Due Process: new lawsuit claims holding immigration court by videoconference limits access to justice and is a pretext for speeding deportations https://www.nytimes.com/2019/02/12/nyregion/immigration-court-video-teleconferencing.html
14A Equal Protection: trade association objects to Pennsylvania bill that would tax adult video games an extra 10%
Electoral College: Dems pushing National Popular Vote Compact in their ‘trifecta’ states
State Constitutions: rational basis test for substantive due process and equal protection claims under state constitutions tougher than in Supreme Court ‘anything goes’ jurisprudence
Judicial ‘minimalism’ explained - courts should avoid broad sweeping declarations and decide cases on the narrowest ground possible
Whatever notions you have about traffic camera speed traps being unconstitutional, forget it says Iowa Supreme Court
“George Washington Letter on God and the Constitution Revealed”
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.
1A: San Francisco ordinance requiring health warnings on soda labels struck down as compelled speech (9th Circuit)
Free Expression: Council of Europe says sharia law is incompatible with freedom of expression, freedom of religion, democracy, etc.
1A Religion: University of Iowa puts 32 religious student groups on probation for supposed discrimination in ongoing tussle over whether Christian groups can be forced to have gay leaders against their beliefs
2A: South Dakota becomes 14th state to enact constitutional carry (no permit required to carry a firearm)
2A: Dems say they need “a new massacre” to succeed on the gun control issue
4A: a police threat to break down door if it’s not opened is not a coercive warrantless entry, Fourth Circuit rules
5A: Rep. Rashida Tlaib (D-Mich.) proposes seizing closed industrial plants to implement Green New Deal
Discrimination: more political bias in public accommodations - California restaurant won’t serve customers wearing MAGA hats. Brandon Straka: so order your food and put on your hat when the food is being made
14A Due Process: appeals court says pistol-whipping is not a ‘crime of violence’ under Supreme Court precedent, over dissent that vagueness should be assessed in light of the facts of the case, not just statutory language (4th Circuit)
Art 1, Sec 9 Habeas Corpus: ordinarily time-barred claim can go forward because actual innocence test met (massive defects in the evidence - witness with memory problems, suggestive lineup, bad forensics, etc.) (4th Circuit)
Nationwide Injunctions - more commentary coming in against lower federal courts issuing nationwide injunctions. There have been 30 against the Trump administration, “matching the total number of injunctions against the first 42 presidents combined”
Why the Articles of Confederation failed - weak central government, supermajority required for everything in the legislature, states had their own foreign policies, etc.
“John Marshall: The Man Who Made the Supreme Court” (one hour video on early Chief Justice who favored a big federal government)
California’s out-of-control referendum process teaches other states why they should avoid ‘direct democracy’
Shame on Don Lemon! He tried to browbeat Gladys Knight into not singing the National Anthem at the Super Bowl. Her reply: “It’s about respect... there are so many that have died for our great country even in my family”
Article 1, Section 9: Elizabeth Warren’s wealth tax is unconstitutional because it is an unapportioned direct tax.
1A Religion: Catholics lose challenge to New York regulation forcing religious groups to fund abortions.
1A: Pamela Geller takes fight against D.C. transit authority to the Supreme Court; authority rejected her ads, then adopted policy against political ads
1A: Supreme Court turns away appeal by high school football coach who kneeled and prayed at games, but resolution of factual issues might make appeal possible later
Free Expression: ICYMI “65-year-old Swedish woman sentenced to prison for criticising Islam and migration”
1A: Massachusetts Supreme Court is asked to decide whether a state rule limiting campaign contributions by corporations can stand when unions are not under the same restrictions
1A Right of Association: Minnesota home health workers challenge exclusive representation by SEIU as violation of associational rights after only 13 percent voted in favor of the union
Gun Rights: Brazil’s new President relaxes gun restrictions to combat high murder rate
4A: pretrial detention based on fabricated evidence violates the Fourth Amendment, 7th Circuit rules
5A Eminent Domain: California cooks up plans to let locales seize beachfront properties, rent them out to deal with climate change sea level rise. Ca-ching, Ca-ching!
14A Equal Protection: brief argues that revoking driver’s licenses for failure to pay fines discriminates against the poor.
Political bias in public accommodations - San Fran art gallery kicks out pro-life students. #MAGAisTheNewBlack
14A Fundamental Rights - Iowa judge knocks down state’s fetal heartbeat law that restricted abortions
Article 1, Section 9 Habeas Corpus - trial judge coerced a verdict by removing reading materials from jury upon learning lone holdout was doing crossword puzzles (11th Circuit)
Equal Rights Amendment fails in Virginia House
Originalism - debate underway: “Defending Substantive Due Process on Originalist Grounds”
Double Jeopardy - the history is pretty clear double jeopardy was meant to bar successive prosecutions for the same offense by federal and state authorities. Is Justice Kavanaugh too in love with precedent?
Shame on the Democratic Party for having California Attorney General Xavier Becerra deliver a Spanish SOTU response. Becerra laughed out loud at the idea of saying the Pledge of Allegiance at a public meeting in 2010.
Shame! Survivor of the Soviet bloc is mocked to point of tears for reciting the Pledge of Allegiance at a Santa Barbara Community College board meeting. Shame on the mockers and on board president Robert Miller for removing the Pledge from the agenda
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.
Supreme Court allows Trump administration to move forward with restrictions on transgenders serving in the military while litigation is pending in lower courts
Trump administration asks for expedited hearing at the Supreme Court on census citizenship question
Article II, Sec 3: State of the Union speech in the style to which we have become accustomed is not constitutionally required
Supreme Court’s refuses early hearing of DACA case
1A: Baby parts sting videos not deceptively edited, 5th Circuit says
1A: federal judge says David Daleiden might win baby parts sting video case
Free Speech: California violated federal conscience protection laws when it tried to force pregnancy centers to advertise abortions, HHS civil rights office says
2A: Supreme Court takes first gun rights case in a decade (challenge to NYC prohibition on transporting licensed firearms to non-shooting range locations)
Due Process: federal judge creates right to block deportation so illegal aliens can sue law enforcement
Free Expression: “Islamist Group CAIR Worked with Twitter to Get Jewish Activist Laura Loomer Banned — THEN CHEERED THE NEWS ON TWITTER!”
Shame! Beto O’Rourke gave as much thought to his assertion the U.S. can no longer be managed by principles laid down in the Constitution as he gave to putting video of his visit to the dentist on social media. Yep, he’s one serious dude.
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.
2A: illegal aliens defy our law and should not be armed, 9th Circuit says in upholding federal gun ownership ban
Equal Protection: federal trial court knocks citizenship question off census, but discrimination claim not proven; appeal expected and 5 other cases pending
Advice & Consent: Supreme Court turns away challenge to acting AG Whitaker appointment
4A: feds can’t force suspects to unlock their phones with biometrics, federal magistrate rules in likening it to self-incrimination
14A Equal Protection: religious institutions are exempt from gender identity nondiscrimination ordinance, Wisconsin judge holds
1A: state law preventing removal of Confederate memorials violates local governments’ free speech rights, Alabama state judge rules
1A 14A: Young Americans for Freedom sues University of Florida for arbitrariness in deciding which student groups get budgeted
1A: Christian artists challenge Arizona law imposing jail time for refusing service for same-sex weddings
2A: Boston mayor wants to force doctors to ask patients about guns in the home
2A: The Soviets confiscated guns, the Nazis disarmed the Jews, Cuba and Venezuela... You get the idea
2A: Study shows California background checks had no impact on gun deaths. Stupid liberal researchers puzzled.
5A Takings: Kelo has limits; taking for economic development OK but not ‘take now, decide later’; can’t stockpile land for future whatever (New Jersey case)
5A Takings: New York Mayor de Blasio threatens to seize buildings belonging to ‘bad landlords’
Article II: President Kamala Harris declares national climate change emergency – do you like the sound of that? Reconsidering Trump and the border wall.
Economic Freedom: new Ohio law sunsets all state licensing boards every 6 years and forces them to justify their existence
Electoral college a bulwark against direct democracy’s mob rule
Electoral college doing its job, giving voice to small states and preventing presidential elections from being decided by two cities (see towards the end)
National injunctions: both sides have lots to fear from nationwide orders from lower courts and should be able to agree to rein them in
Article V Convention – phony petition signatures alleged in Idaho (It’s not the first time Con Con advocates have been accused of fraud)
Shame! Nancy Pelosi says the Constitution considers her the equal of the President when it clearly does not
Shame! Wharton prof proposes blatantly ignoring Article V and passing a law depriving states of their equal suffrage in the Senate without their consent
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.
Masterpiece Cakeshop's case against Colorado rights commission gets green light (Constitution news round-up)
1A: Jack Phillips Masterpiece Cakeshop case against Colorado rights commission in transgender dispute can proceed, federal trial court says
14A Equal Protection: D.C. Circuit dissolves preliminary injunction against Trump admin’s partial ban on transgender military service, but ban remains blocked by other courts
5A Fundamental Rights: 9th Circuit grants Trump administration interlocutory appeal in Climate Kids case; trial delayed
5A Due Process: illegal aliens with final deportation orders have the right to advance notice of actual deportation, federal judge says
1A: PragerU files new suit against Google/YouTube, pursuing state constitutional and other claims in state court while federal claims on appeal
1A etc.: 9th Cir. upholds Arizona's requirement (challenged by DNC) that in-person voters cast their ballots in their assigned precincts
1A: school board’s practice of allowing an invocation to be offered at its meetings violates the Establishment Clause, 9th Circuit says. Senior judge: “What nonsense!”
1A: BuzzFeed’s publication of Steele dossier protected by ‘fair report’ privilege, federal judge rules
4A: Jerome Corsi’s lawsuit against Robert Mueller for, among other things, unconstitutional surveillance can proceed, federal judge rules
14A Equal Protection: Supreme Court takes Maryland and North Carolina partisan gerrymandering cases
House Dem introduces bill to kill the Electoral College
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