1A, Equal Protection, Due Process: federal judge finds voters were disenfranchised and orders New York to count mail-in ballots that were not postmarked or arrived late in June congressional primary. What a mess!
1A: Sixth Circuit upholds Ohio law requiring in-person collection of ballot petition signatures, despite pandemic
1A: prosecutors to drop condition of release ‘don’t attend any more protests’ in Oregon cases (the constitutional question is complicated)
1A: President’s executive order on social media does not give private right of action when account targeted
Free Expression: UK Muslims throw Christian woman to the ground for criticizing Islam
1A/2A: California uses red flag law to take gun from man who ‘posted racist rhetoric and propaganda online’ (predictions of future dangerousness from people whose politics we don’t like? WOW! Sounds like a European speech code to me.)
2A: “Gun Stores Have Standing to Raise Their Customers' Second Amendment Rights” (4th Circuit)
14A Due Process: Kansas Supreme Court strikes down state knife statute as vague and overbroad - what is a “dangerous or deadly cutting instrument of like character”?
Shame and Kudos - Shame! on two entire NBA teams for taking a knee during the National Anthem and Kudos! to the two NHL teams who stood for the Anthem at season openers
‘Rioters Have Been Grabbed Off the Street Without Probable Cause’ - Round One Goes to the Government
Congressman Ted Lieu of California and other Democrats have alleged that federal agents have seized protesters, placed them in unmarked vehicles, and detained them for several hours before releasing them. Lieu called these ‘police state’ tactics.
The Fourth Amendment to the U.S. Constitution protects people against unreasonable search and seizure. The state of Oregon recently went to court to get a temporary restraining order to prevent the federal government from seizing protesters off the street without probable cause in the future. Oregon lost.
The federal judge assigned to the case began his opinion by pointing out that protesters whose rights are violated can sue for money damages and injunctive relief themselves. But this case was different because the plaintiff was the state of Oregon, not a protester. Moreover, the state was suing to stop unlawful practices from happening in the future, not to redress harm done to protesters in the past.
Several pages later, the judge concluded that Oregon lacked standing to bring such a case, because it had no interest in the matter specific to the state itself. The opinion referred to numerous reports cited by the state that federal agents were grabbing protesters and shoving them into unmarked vehicles. The allegations, if true, amounted to ‘”seizures” under the Fourth Amendment, the judge acknowledged. However, the Oregon Attorney General overstated the evidence. The judge reviewed the evidence the state presented, and found there was only one instance of an arrest without probable cause and one case of an unreasonable seizure. The judge found it notable that the state did not pursue the notion - or request any relief - regarding the supposed use of unmarked vehicles. The state let that assertion go. Overall, the judge said the state’s comparison of current events to the 30,000 people who were disappeared in Argentina 40 years ago was completely off base. He ruled that Oregon did not have standing to seek a restraining order to prevent widespread 4th Amendment abuses in the future based on a record of just two incidents.
He also found not credible the state’s claim that it was injured because reports of random seizures by the feds might encourage counter-protesters to dress up like police officers and kidnap protesters. The state admitted it didn’t have a shred of evidence from anywhere, at any time, to support this theory, making it just wild speculation.
The state could have, but did not, show that all of the government’s seizures lacked probable cause - there have been dozens. Also, the state failed to produce any evidence that federal agencies had given their personnel standing orders to grab people at random off the street. The state had no evidence of any of this, and thus failed to establish these are widespread practices. Without widespread practices, the state had no standing to obtain the sweeping injunctive relief it sought for the future, the judge ruled.
So, Oregon gets an ‘A’ for creativity, but its wild legal theories didn’t pass the ‘laugh test’, as they say in the legal business. This was not a close question. Oregon had to know they didn’t have a legal leg to stand on. So the question becomes, why did they pursue it?
Discrimination: Fall-out begins from Supreme Court’s atrocious transgender / sexual orientation decision - ACLU sues to force Catholic hospital to perform transgender surgery; more implications for free speech, women’s athletics, parental rights to pass on their values, etc.
Emergency Powers: Supreme Court defers to public health authorities again, decides against churches a second time on COVID restrictions
1A: federal judge tosses prosecution for harassment emails sent to Mitch McConnell; rejects government’s argument speech was ‘integral to criminal conduct’
1A: Chinese student sues Fordham for barring him from campus for Instagram post implying gun ownership can prevent Tiananmen Square-style massacres
1A: Pro-Trump women’s group sues de Blasio over refusal to grant permission to paint a street mural; Mayor’s initial response - ‘Black Lives Matter transcends politics’
2A: “5,000 guns stolen in first week of June, alone. Still think background checks are going to keep guns out of criminal hands?” (h/t VCDL)
2A: “Who needs more than 10 shots? Female Cop Shoots at a Knife Attacker 14 Times” (h/t VCDL)
4A: “The Fourth Amendment does not require officers to knock and announce their presence before entering an open door.” (son left front door to defendant’s house open) (8th Circuit)
8A: Courts, not sheriffs, get to set conditions of release; sheriff can’t hold people after they make bail, or make up other conditions (7th Circuit)
Electoral College: federal appeals court upholds time-honored ‘winner-take-all’ system for South Carolina’s votes in Electoral College; declines to institute proportional results (4th Circuit)
Shame! Two women’s pro basketball teams walk off the court when the National Anthem is played. I suggest you relocate to the economic basket case of your choice - I hear Venezuela, Zimbabwe, and North Korea are nice this time of year. If you’re not willing to do that, then thank your lucky stars you live in America.
Kudos! Camp Constitution has record turn-out this year - congratulations!
Tonight, I talk about some constitutional implications of the lawless ‘autonomous zones’ we’ve seen this summer in Seattle, Portland, and elsewhere.
The people who think these zones are cute are missing the fundamental point - the zones set themselves beyond the law in a country that has, up to this point, prided itself on maintaining the Rule of Law. If not the U.S. Constitution or the laws of the states in which these zones are situated, then what law governs? The subjective whims of warlords toting assault rifles? That’s hardly ‘sustainable’ or ‘fair’, to borrow words from the Left. This certainly violates the spirit of the Supremacy Clause of Article VI making the U.S. Constitution and the laws of the United States the supreme law of the land.
A welcome sign at the Seattle autonomous zone said “You are now leaving the USA”. Didn’t we fight a Civil War when the southern states seceded from the Union? So some punks secede from the Union and the Mayor of Seattle eggs them on with impunity - how does that work?
Next, Article IV, Section 4 of the U.S. Constitution says the United States shall guarantee to every state a Republican form of government. When you start digging into the meaning of the word ‘republic’, it gets a little fuzzy, but there are two main components. First, representative government where officials are elected to represent the people. And second, a tradition of individual rights protecting individuals and political minorities from what our Founders called the tyranny of the majority. A pure democracy could vote to strip you of all your rights tomorrow and there wouldn’t be anything you could do about. This is why our Founders gave us a republic so we would have recourse against the will of the majority if it tried to trample our rights. I don’t recall in any of the coverage of the autonomous zones anything resembling elections or a Bill of Rights guaranteeing protesters free speech, freedom of religion and conscience, or any of the rest of the Bill of Rights.
Others have pointed additional constitutional problems with the whole exercise:
Local businesses have sued the city of Seattle for condoning the autonomous zone there and depriving the owners of their property rights and other constitutional rights.
The autonomous zone protesters in Seattle demanded retrials of all people of color serving sentences for crimes of violence. Because it leaves out whites, this would blatantly violate the Equal Protection Clause of the 14th Amendment.
Another demand is for juries to be composed of the same race as the defendant. The Supreme Court ruled a long time ago there is no right to a jury composed of your own race.
Protesters also want the courts abolished entirely. This would require tossing out the judicial powers in the U.S. and state constitutions, plus all the rights courts administer like the right against unreasonable search and seizure, the rights to confront your accusers and compel witnesses to appear on your behalf, and other trial rights.
I offer these thoughts not as a rigorous legal analysis of possible causes of action, but as commentary from someone who has studied political philosophy and constitutional law for decades and is concerned that not enough people recognize that these autonomous zones offend the philosophical underpinnings of our Constitution - concepts like the Rule of Law instead of Might Makes Right, limited government, separation of powers, and preventing the concentration of power in the hands of a tiny elite, especially when the self-appointed leaders of that elite have not been elected by anybody to do anything. I’ve studied the entire menu of political theories from the ancient Greeks on down and America’s Founders got it right - classical liberalism is the most coherent, humane, and stable governing theory ever devised. The U.S. Constitution and Declaration of Independence are classical liberal documents and are to be celebrated, not trashed.
The rioters show a profound ignorance of the Constitution and the classical liberal values supporting it. Part of the blame for this rests with public schools which have deliberately been trying to strip away America’s foundation for more than a generation. No wonder young protesters no longer understand their own country or what they are throwing away. But part of the blame also rests with everyone over the age of 18 who has not taken steps on their own to learn America’s founding principles or the system in which they are voting. Finally, a large part of the blame rests with the political Right - us - for sitting out for 50 years, letting it all happen, and not doing nearly enough to communicate the magnificence of the Founders’ ideals or why those ideals remain important today. Maybe if the couple in St. Louis had declared their yard an autonomous zone instead of just showing their guns, they would have gotten a lot more sympathy.
LGBT Face-Off with Religious Liberty: Adoption Agency Prevails Over New York on Marriage Views (Constitution news round-up)
Discrimination: Christian adoption agency beats New York in court; state tried to shut agency down for its beliefs on marriage; hostility to religion rationale prevailed (2nd Circuit) (LGBT rights v. religious liberty is the battleground today)
1A: Yes, conduct can be speech but this is ridiculous - “Protester claims lighting Molotov cocktail protected by First Amendment”
Free Expression: Amazon, Dems on Capitol Hill try to bury free speech documentary. #RiseOfTheAuthoritarianLeft
Free Expression: Cornell law prof faces coordinated campaign to get him fired for daring to criticize Black Lives Matter; supporters afraid to speak up
Free Expression: Fordham bars Chinese-American student from campus, demands he be re-educated after he holds gun in Instagram photo about the Tiananmen Square massacre
State Constitution: Michigan Supreme Court rules seizure of entire value of a property to collect $8.41 in delinquent property taxes is an unconstitutional taking calling for just compensation
14A: prisoners have a protected liberty interest in not being kept in solitary confinement for 4 years (4th Circuit)
Slides and videos available from law professor’s Constitutional Law class
Print your own Constitution booklet at home for free
The Citadel military college in South Carolina (unlike other schools in the state) will follow state law and require all cadets to study the Constitution
I’ve said many times on these webinars that the rise of the authoritarian Left is the central challenge of our time. We saw it when they rammed Obamacare down our throats and again most recently in the riots and autonomous zones this summer. We’ve also seen it in recent years in the Left’s efforts to shut down speaking engagements by Ben Shapiro, Heather Mac Donald, and numerous other figures on the political Right.
I’ve written a manual to help individuals and groups on the political Right fight back when cancel culture comes knocking at their door. The manual is dedicated to the memory of Phil Haney who gave me an interview on the subject shortly before he died.
The manual starts with a cancelled event from April 2019 when ACT for America founder Brigitte Gabriel was scheduled to speak at Cross Creek Community Church in Wilkes-Barre, Pennsylvania. The executive director of the local Chamber of Commerce posted the event on the Chamber’s public online calendar. When he received an email indicating the event might be controversial, the executive director (who was also the local ACT chapter leader), took the event off the calendar. The pastor of the church previously did not know what ACT for America was all about and began looking into it for the very first time. He withdrew his approval to hold the event at his church. Subsequently, the Chamber executive director resigned from ACT.
This story is a good example of what NOT to do. It shows a failure to plan and to vet the venue. Everyone involved lacked situational awareness. This was stupid; they were asking to get clobbered. The venue and the sponsor folded like a cheap tent at the first sign of controversy. This didn’t have to happen.
The theme of the manual is ‘plan ahead’. Choose your venues wisely and vet your sponsors for their ability to resist pressure campaigns. Require registration or, if necessary, structure the event to increase the chances of success, perhaps as a private event with the location disclosed only at the last minute, or as a debate with all sides represented and agreeing there will be no disruptions. Have your security plan in place. Be ready with Plan B - an alternate location or a secret room for livestreaming. If it’s a campus, review the school’s policies on free speech and controversial events and, more importantly, the school’s actual track record on enforcing those policies. Some schools are better than others when it comes to enforcement.
Be ready to respond to pressure campaigns from advocacy groups like CAIR or Black Lives Matter, from local politicians, and from unfriendly media. Be ready to mount your own pressure campaign by lining up supporters, friendly media, and politicians ahead of time.
Be ready to respond to the down-the-rabbit-hole arguments of the Left like ‘your speech is violence, you have no right to speak’ or this beauty that came up at a cancelled event at Williams College:
This kind of craziness shows you the authoritarian Left not only doesn’t care about free speech; it’s overtly hostile to First Amendment values. The Left wants to shut you up and believes it is within inches of finishing off the political Right once and for all. So the stakes are very high. Unless the Right gets better at neutralizing cancel culture, you can say goodbye to your free speech and to any kind of America you would want to call home. The manual is my modest contribution to preventing this from happening. It’s free for the asking to my friends on the political Right.
1A: Supreme Court rules government cannot interfere with teacher hiring decisions in religious schools
Electoral College: Supreme Court shoots down ‘faithless electors’, rules states can force electors to follow popular vote (this will cut both ways)
14A Fundamental Rights: Supreme Court breathes new life into Indiana abortion ultrasound law, paving the way for arguments on constitutionality
1A: Supreme Court turns away challenges to state speech curbs around abortion clinics
1A: Judicial Watch sues D.C. over Black Lives Matter street mural; if the streets are now a public forum, all viewpoints must be allowed
Free Expression: “Letter signed by J.K. Rowling, Noam Chomsky warning of stifled free speech draws mixed reviews”
Free Expression: Multiple leftist groups gang up to try to get Young Conservatives booted from Texas campus
Free Expression: Multiple leftist groups gang up to demand UPitt fire any employee they say is racist
Free Expression: Harvard prof in the cross-hairs for research on police shootings
2A: GOP lawmakers ask Justice Department to defend St. Louis couple whose guns were confiscated after defending their home against protesters
State Constitutions: Virginia judge rules 18-to-20-year-olds have a right to buy handguns
14A: shackling the defendant in front of the jury undermines the presumption of innocence (6th Circuit)
Discrimination: California court allows challenge to state corporate board gender quotas to go forward
Dormant Commerce Clause - California’s ban on foie gras comes tumbling down
Economic Freedom - new Florida law repeals or relaxes occupational license restrictions for 30 trades including hair braiders and interior designers (momentous; there has never been such a wholesale retraction)
Survey: liberals want to rewrite Constitution to impose race quotas to control the history you are taught, the art you are allowed to see, etc. Give Me Diversity or Give Me Death!
Two weeks ago, the Supreme Court ruled, as a matter of federal statute, employers cannot fire employees simply for being homosexual or transgender. [Bostock v. Clayton County, Georgia] Justice Neil Gorsuch wrote the opinion for the Court. The opinion purports to interpret the terms of Title VII of the Civil Rights Act of 1964 in accordance with their ordinary public meaning at the time of enactment. Title VII forbids discrimination on the basis of, among other things, race, religion, and sex. The parties agreed that the term “sex” in 1964 referred to the biological distinction between male and female. So how does Gorsuch puff up the term ‘sex’ to include sexual orientation and gender identity? The opinion is an amazing display of how the Court can turn night into day when it wants to reach a particular result.
Here’s the core of Gorsuch’s reasoning: Because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender violates Title VII which outlaws discrimination on the basis of sex. Gorsuch is essentially saying that ‘sex’ is necessarily involved in discussing whether people are gay or transgender, so Title VII applies. But people also breathe, so it’s like saying breathing is the key fact that decides the case. The logic could be used to add discrimination against blonde people to the statute. You can’t talk about blonde people without referring to the fact they are human beings who possess male or female sex attributes. To take such a worthless truism - that all people are of the male or female sex - and use it to make law is preposterous.
Gorsuch goes on to drag in extraneous issues and declare that specific court precedents are binding when they don’t really apply to the matter at hand. The whole thing is a house of cards built on judicial doctrines, nothing Congress did or said. Gorsuch dismisses Congress entirely. The employers argued Congress could have included sexual orientation and gender identity when passing Title VII, or add them at any time, but did not. Gorsuch turns this on its head, saying Congress didn’t specifically exclude those categories so the Court is free to add them. So much for the pretense that he is simply applying the original public meaning of these terms from 1964.
The whole thing is ludicrous. There’s lots of fancy dancing. Gorsuch strains every step of the way, and that tells me something’s not right. This is results-oriented jurisprudence at its worst. It undermines federalism, by putting Washington in control of contentious social issues best left to the laboratories of the 50 states. It weakens Congress as an institution and empowers the Supreme Court in ways the Founders never intended. Cowardly Congress critters may be breathing a sigh of relief that this nettlesome political issue has been taken off their hands, but they are complicit in damaging the power of their own institution. The Court’s opinion was all about statutory interpretation, not constitutionality. Congress could reverse this decision, but don’t hold your breath. As for the Court, Senator Josh Hawley and others are saying that it’s time to stop placing so much hope in nominating conservative Justices and to start figuring out how to rein in the runaway Court as an institution. One solution that’s been put forward is a proposed constitutional amendment to give a super-majority of state legislatures the power to reverse the Court on constitutional questions, a solution I’ve mentioned before on these webinars.
There are lots of implications and questions arising from this decision. First, I worry we have another Anthony Kennedy in the making, a Supreme Court Justice who doesn’t understand or doesn’t care it’s not the Court’s job to dabble in social engineering. The fundamental dishonesty of Gorsuch’s opinion reminds me of the fundamental dishonesty of Anthony Kennedy’s opinions. Also, it’s disturbing that Gorsuch has adopted the language of the Left in minimizing biological sex, portraying it only as something that is ‘assigned at birth’ and, therefore changeable when the truth of the matter is that it’s not changeable, not even with mutilating surgery and a lifetime of powerful drugs to suppress Mother Nature.
Second, the Trump administration recently reversed an Obama-era rule restricting transgender services in government healthcare programs, saying there was no statutory authority for the rule. Arguably, the recent case is limited to its facts - the employment context - and does not apply the healthcare context. But the Trump administration could easily decide to bow to the inevitable and abandon its transgender healthcare rule.
Finally, and of critical importance, the battleground now shifts to the question of whether religious employers, churches, schools, and charities are exempt from civil rights statutes like Title VII, or will have to comply with them. There’s a showdown coming between religious liberty and gay and transgender rights. Will religious institutions be forced to hire gays and transgenders in violation of the institution’s religious doctrines? What about their conscience rights, and the fact that this entire country was founded by people who came here seeking religious liberty? Is all that to mean nothing and we must now all comply with a new orthodoxy pushed on everybody by a tiny percentage of the overall population? The day is not very far off when we will begin finding out what kind of country we really are.
1A Religion: Supreme Court rules states cannot bar religious schools from scholarship programs; case involves Montana, but 38 states have similar laws.
14A Fundamental Rights: Supreme Court strikes down Louisiana law requiring abortion doctors to have hospital admitting privileges
Separation of Powers: Supreme Court rules CFPB director whom President cannot fire is unconstitutional, but lets agency stand
1A: Bill to ban hate speech from social media is still pending in New York (the drumbeat to outlaw hate speech is growing louder)
Free Expression: House Dems harassing conservative nonprofits (again); demand years of communications from 23 nonprofits with Marathon Petroleum on rollback of Obama-era fuel efficiency mandates
2A: federal judge strikes down Jackson, Mississippi’s open carry ban; open carry legal in the state
Separation of Powers: it’s OK for federal courts to adjudicate intrabranch disputes between federal agencies when at least one agency is independent
State Constitutions: California pro-affirmative action amendment to be decided by ballot in November election; critics say it would legalize racism and sexism
Separation of Powers - After Supreme Court defeat, the Trump administration said it will try again to end the DACA program within 6 months
Gentle Reminder: Incitement to riot is not protected by the First Amendment
1A: Woke Georgetown students declare ‘oppressive language is violence’, blah-blah
1A: prisoner’s claim against prison officials for hijacking correspondence with his lawyer survives motion to dismiss
1A: California law prohibiting the publication of Hollywood stars’ ages and birthdates is unconstitutional (9th Circuit)
1A / RLUIPA - California court OK’s restrictions on church to help city create “a street of fun” even though nursing homes and post offices operate downtown unimpeded
2A: Johns Hopkins report on Baltimore finds that arresting people on gun charges does nothing to lower crime
4A: Continuous non-stop surveillance of house by camera is constitutional (1st Circuit)
4A: Yikes! 7th Circuit affirms lower court ruling that hanging a tree-shaped air freshener from your rearview mirror justifies a traffic stop and any evidence seized is fair game.
State Constitutions: New Mexico Supreme Court denies privacy claim, upholds warrantless grand jury subpoenas for personal banking records
5A: phone decryption issue likely headed to Supreme Court after Indiana Supreme Court rules defendants can’t be compelled to incriminate themselves by order to unlock their phones
14A: Clarence Thomas dissent rejects incorporation doctrine and concludes free speech is protected from state restrictions by the Privileges or Immunities clause
Shame! Ignorant ingrates tear down George Washington statue in Portland, wrap it in burning U.S. flag
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