Trump says Sotomayor and Ginsburg should recuse themselves for political bias (Constitution news round-up)
It’s Not Fair, Change the Rules - Why We Have the Electoral College (new article)
Trump says Supreme Court Justices Sonia Sotomayor and Ruth Bader Ginsburg should recuse themselves from any cases involving him or his administration because of the hostile political opinions against him they have expressed.
Trump Flips 9th Circuit - Sea-Change in Opinions Coming
Separation of Powers: Second Circuit allows Justice Department to block federal funds to sanctuary jurisdictions, finding that Congress had delegated authority to place conditions on the grants in question
5A: federal court rules border patrol holding cells unfit for stays longer than a few hours
Amendments: 5 states that rescinded their ratification of the Equal Rights Amendment sue to block its adoption into the Constitution
14 Equal Protection: Florida cannot ‘re-disenfranchise’ felons for nonpayment of fines after state constitution was changed to restore their voting rights (11th Circuit panel)
1A Religion: Supreme Court takes case testing whether Philadelphia can exclude Catholic agency from its foster care program because it refuses to place children with same-sex couples
Discrimination: Supreme Court turns away appeal of Seventh-day Adventist who asked Walgreens for a guarantee he would never have to work on Saturday
2A: New Mexico Governor signs red-flag law, tells sheriffs to enforce it or resign
1A: federal judge rules Chicago can’t keep Christian students from evangelizing in public park
1A: students sue Wisconsin high school after being told not to wear T-shirts depicting guns
5A Eminent Domain: another Hurricane Harvey case goes the other way, because the deliberate flooding this time occurred when a reservoir went over capacity (cause-in-fact: government’s actions made no difference to the outcome)
8A Cruel and Unusual: Supreme Court nixed most life-without-parole sentences for minors, but effective life sentence of 3 consecutive 30-year terms is perfectly OK (8th Circuit in triple murder case)
Georgetown Law starts constitutional book series
Follow along in the Declaration of Independence, trace its origins in Greco-Roman natural law theory, and be inspired by the Founders’ travails to pluck up your courage for the fights ahead
Tonight we take up the question: are quarantines constitutional?
China has locked down entire cities, shut down public transportation, blocked highways, and gone door to door to find sick people in response to the coronavirus outbreak there. Could governmental authorities in the United States impose similar quarantine measures in response to a disease outbreak here?
The answer is yes, and it would be perfectly constitutional. In a 1900 case, the Supreme Court said:
In 1905, the Court further explored the tension between individual liberties and the common good, coming down in favor of Massachusetts’ compulsory vaccination law. The Court said, “Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.”
Generally speaking, states have broad powers to protect the health, safety, morals, and general welfare of their inhabitants under what was formerly called the police powers. The doctrine has changed a bit, but the power to safeguard public health remains.
U.S. law empowers governments to quarantine people, commandeer private property and personnel, and declare martial law in public health emergencies. These are broad, sweeping powers, but does this mean we are no different from communist China? The answer is no, first of all, because there are limits on governmental public health powers in the United States. Some constitutional protections must be observed. The government must have valid reasons to use health emergency powers in the first place - it can’t act arbitrarily; the health measures imposed must be reasonably designed to achieve a health objective; the benefit must outweigh the burdens placed on people; and authorities must avoid harming people in the process.
A second key difference is that China attempts to control information, and we do not. China has been censoring social media, silencing doctors and others who speak out, and clamping down on media to the extent of expelling foreign reporters and threatening the press abroad. The end result of trying to cover everything up has been a bigger health disaster for the world than it needed to be. Thanks a bunch, China.
Finally, there’s a key philosophical difference between communist China and America. In response to the outbreak, Chinese citizens petitioned their government for the right of free speech. In America, we are born with the right of free speech and other natural rights. We don’t have to ask the government for our rights, and the government can’t take them away from us. China holds itself out as a ‘Model to the World’ but the coronavirus shows, once again, that it’s the American Founding - not ‘socialism with Chinese characteristics’ - that truly lights the way to human progress and flourishing
Quarantines are constitutional, but constitutional protections apply: “must use the least restrictive means consistent with medical guidance, and the government must have good reason to believe you’ve been exposed.”
14A privacy rights must yield to school district transgender bathroom/locker room policy (9th Circuit)
Amendments: House votes to remove ratification deadline for ERA
Religious Freedom Restoration Act interpreted to shield activist who leave food and water for illegal immigrants
Free Expression: Mark Zuckerberg again asks for regulations on social media to preserve free speech (‘somewhere between a publisher and a pipeline’) before China’s anti-democratic vision of the Internet holds sway. (Hmm.... should we take this at face value?)
Contracts Clause, etc.: federal judge upholds California’s ‘gig economy’ law making it difficult for employers to classify workers as independent contractors instead of employees with benefits
1A: Ohio state senate votes to ban free speech zones that limit speech on campus
Free Expression: Trudeau minister announces all Canadian news websites must now get a government license
2A: Florida officials mistakenly seize veteran’s guns in Red Flag law foul-up
4A: 9th Circuit to hear case of police officer in state that has legalized marijuana justifying car search on fact marijuana still illegal under federal law
Art V: If states can’t rescind ERA ratification, the consequence might be that we will have an Article V convention on the Balanced Budget Amendment
Kudos! - Black activists launch ‘1776 Project’ to counter NYT’s ‘lethal’ ‘1619 Project’ which tells blacks they are victims and still can’t get anywhere because of slavery
Three States Sue for Declaration Equal Rights Amendment Now Ratified
1A Religious Liberty v. Discrimination: Two students sue Christian seminary for expelling them because they are in same-sex marriages
Discrimination: Pregnancy counseling center sues over New York law forcing it to hire employees who support abortion against the center’s beliefs. #AuthoritarianLeft
1A: California State University agrees to pay $240,000 in legal fees and change its policies to settle case against it for discriminating against pro-life student club
1A: Two Christian students in Georgia ask Supreme Court to hear their case against camp speech code and zone
2A: 21 states sue Trump administration over its effort to allow 3-D printed gun files on the Internet
2A: New Jersey seizes nearly 200 guns under red flag law in just 4 months
2A: The Founders were familiar with gun magazines having over 10 rounds
Shame! on the New York Times 1619 Project for making the preposterous claim the Founders fought the War of Independence to preserve slavery
Kudos! to the Virginia high school students who formed a flag caravan when told the U.S. flag is “offensive” and could not be displayed on vehicles on school grounds
Kudos! to the Alabama legislative committee that reported out a bill to require public schools to play the Star-Spangled Banner at least once a week and at school sporting events
Prepare to be confused. This is a tough one.
The Supreme Court recently heard oral arguments in another government aid to religious schools case, this one from Montana. The Court has been wrestling with this issue since at least the 1940s. The Court still has not enunciated a bright line test or clear framework for deciding these cases. A number of factors have been cited over time, producing a mish-mash of results. For example, the government providing buses to take children to and from religious schools has been upheld, but not buses for field trips. Government money for administering standardized tests in religious schools is OK, but not for administering writing tests. The cases are all over the lot, just like the Court’s decisions in the Christmas display cases. Both situations involve the Court interpreting what is and is not an unconstitutional establishment of religion under the First Amendment to the U.S. Constitution. [Chemerinsky, Constitutional Law - Principles and Policies, 4th ed., pp. 1275-76]
At issue in the Montana case is a state tax credit program for people who donate to private schools. A state agency barred any of the donated money from ending up at religious schools, citing the so-called ‘Blaine Amendment’ in the state constitution which prohibits any direct or indirect aid to any school controlled by any church. The proposed Blaine Amendment to the U.S. Constitution was designed to deny any aid to religious schools. It passed the U.S. House in 1875, but failed in the Senate and never became law. However, 38 states including Montana adopted the provision in their own state constitutions. Much has been written about the motivation behind the Blaine Amendment - an attempt by bigoted anti-Catholic Protestants to deny aid to Catholic schools.
Montana is arguing that its Blaine Amendment “promotes religious freedom by preventing the government from using its leverage to dictate religious policy." It also protects the rights of people who don’t want to be forced to support a religion they don’t believe in.
The counter-argument is that it’s unconstitutional, as the Court has held, to deny a public benefit just because a church is involved. That would show impermissible hostility to religion. Justice Kavanaugh said something similar during oral arguments in the Montana case. He asked, if it’s OK to give a scholarship to students who are secular, how do you justify denying students scholarships just because they’re Catholic?
One legal expert predicted another narrow 5-4 decision limited to the specific facts of the Montana case that will clarify absolutely nothing and give very little guidance for the next case, just like the Christmas display rulings. A decision is expected by June.
My personal opinion, for what it’s worth, is that religious schools should not want to take any government aid, period. Where government money goes, government control follows. I’m not saying government money will have kids in religious schools praying to Chairman Mao tomorrow, but I am saying government money creates dependency and religious schools will eventually succumb to pressure to follow the government line on religion in subtle ways. Better not to get hooked on government money at all than to be subverted in ways you can’t anticipate.
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