Shame! Former Justice Stevens calls for repeal of the Second Amendment, completely misunderstanding how it has helped preserve our liberty to the present day.
10A: Orange County to join federal lawsuit against California sanctuary laws; sheriff posts release dates for all inmates.
15A: federal judge orders Florida to revamp its felon voting rights restoration system; disproportionately disenfranchises blacks
10A: federal judge dismisses Tennessee case testing whether federal government can dump refugees on state and expect state taxpayers to pay for them https://refugeeresettlementwatch.wordpress.com/2018/03/22/judge-dismisses-tennessee-states-rights-case-on-refugee-resettlement/
1A: federal judge tosses Dennis Prager censorship lawsuit; YouTube not a public forum.
4A: Constitution-free zone? Border patrol agents can stop people, check IDs, and ask about citizenship 100 miles inside all U.S. borders under federal statute and regs
4A: study validates ‘ACLU effect’; reduction in stop and frisk caused spike in Chicago homicides.
Non-delegation doctrine: federal judge strikes regulation implementing Obamacare “health insurance providers fee” which gave private entity authority to decide who must pay
1A: federal judge dismisses challenge to Ohio law against “invective, ridicule and strong language” on the Internet
1A: Spokane affirms free speech, won’t shut down ‘Patriot Prayer’ event on a guess there might be a disturbance
1A Religion: ‘reindeer rule’ keeps getting wackier. Nativity scene OK if has nonreligious songs, skits, and mannequins, and no Bible readings.
1A Association: state legislature can tell political party how to select its candidates.
2A: “Democrat Candidate for Sheriff Suggests Killing People to Take Their Guns”
2A: Big bank, credit card issuer attempting to de-monetize legal firearms, squeeze gun manufacturers
5A Takings: The U.S. government has voted to confiscate white-owned land without compensation. Ruth Bader Ginsburg shrieks her approval (‘best constitution ever!’). Then I woke up.
6A: 6th Circuit rules no right to counsel prior to indictment
10A: Michigan passes legislation restricting state’s cooperation with federal FISA 702 surveillance
14A EP: trial lawyers can’t strike potential jurors for race but courts don’t have to inquire why struck some and kept others when same race-neutral reasons apply (5th Circuit)
14A DP: Supreme Court reaffirms idea that criminal statutes cannot be overbroad and give prosecutors too much discretion to decide what constitutes a crime
Economic Freedom: Louisville jettisons ban on food trucks operating within 150 feet of restaurant selling similar food.
A look at Cooper v. Aaron, 1958 case which announced ‘judicial supremacy’ – Supreme Court can declare ‘supreme law of the land’ beyond litigants at bar
“100 French Intellectuals Issue A Warning About Islamic Totalitarianism” – “We want to live in a world where no religion lays down the law.”
James Madison’s Notes are the most authoritative record available of what transpired at the Constitutional Convention of 1787. Madison sat up front, took voluminous notes, and worked late into the night filling in the details.
The Library of Congress has just put 626 high-quality color images of Madison’s Notes online. You can download them, but there’s no search function for the text at the Library of Congress site. Yale Law School has the full text of the Notes by date, but the easiest way to search the text I’ve found is at Montpelier.org.
In looking at all this for tonight’s webinar, I was surprised to find yet another attack on America’s founding. People have been taking potshots at Madison’s Notes ever since they were published in 1840, four years after his death. A 2015 book, Madison’s Hand, by Boston College law professor Mary Sarah Bilder is the latest attempt to discredit the Notes. Madison revised the Notes throughout his life, but Bilder claims that Madison deliberately took things out, and invented speeches that had never been given, in order to score points in political fights he was having in the 1790s.
Her claims have been criticized, but they amount to another attempt to put the “Father of the Constitution” and the other Framers under a cloud of hyper-partisanship and self-interest. This is a variation on the Progressive theme that the Framers were venal and the Constitution is entirely the product of self-interest. For example, Howard Zinn wrote in A People’s History of the United States that the Framers were from the monied classes and rigged the game in favor of themselves as moneylenders, land speculators, and slave owners [pp. 90-91]. There were no higher principles at stake in the writing of the Constitution, Progressives maintain, just naked economic self-interest.
If that were true, and there was nothing noble about it, how has our Constitution endured for 230 years? If Ben Franklin having been a womanizer and several of the Framers having been slave owners disqualified all their ideas, how could the Constitution have survived the Civil War and other severe tests in our history? If the Framers didn’t have their finger on the pulse of human nature and a firm grasp on correct principles of human governance, how could our Constitution become the longest lasting written Constitution still in use today?
The Framers found the answer to the central question of political science of all time: how do you prevent the concentration of power in too few hands. You put too much power in too few hands and bad things happen. King George shuts down your legislatures and starts taxation without representation. Too much power in too few hands and pretty soon 100 million people are dead, as has happened under socialism. This is why there are such things in the Constitution as separation of powers, checks and balances, and federalism – to limit government and divide up power so things don’t get out of hand. Limited government never killed 100 million people.
The Constitution and the Declaration of Independence are classical liberal documents. Classical liberalism doesn’t promise perfection, but does represent the most coherent, sustainable, and humane political philosophy ever devised. It elevates the individual, embraces every person in the protection of individual rights, and condemns no one to a life of drudgery serving the state.
Let’s contrast that briefly with collectivism, which Howard Zinn and other Progressive critics of the Constitution espouse. Coherent – every time I turn around, I find another contradiction in collectivist thought. Marxism extolled the virtues of the proletariat, but Lenin, Gramsci, and Mao didn’t think working people were up to the job of revolution and dreamed up ways to get around them. Sustainable – our Constitution has stood the test of time, unlike the seven constitutions in four years adopted in the failed New Harmony commune in the 19th century in Indiana. Deluded Leftists thought they had seen the future in the Soviet Union, but it went kaput after just 75 years. Humane – collectivism can hardly be considered humane, unless you think deliberately starving tens of millions of people to death in the Holodomor, the Great Leap Forward, and other socialist engineered famines is humane.
Thank your lucky stars you live in America where we have limited government under the Constitution. And, as I’ve repeated many times on these webinars, resist all attempts to denigrate the Founders’ ideals and tear down our founding documents. The Constitution is what stands between you and tyranny, the fate that has befallen most of humanity over time. That’s a self-interest we should all be able to get behind.
Supreme Court turns away Pa GOP’s challenge to court-drawn electoral map; basically saying such juidicial intervention compatible with republican form of government (Guarantee Clause)
Preemption: “Federal Court Allows Texas To Enforce Governor’s Anti-Sanctuary City Law”
California city passes resolution purporting to opt out of California’s sanctuary state laws.
14A DP: federal judge throws out L.A.’s ‘gang injunctions’, effective crime-fighting tool which prevent people from associating with gang members, etc.
1A: suit allowed to proceed for refusing an ad in a radical lawyers association dinner program booklet deemed a ‘public accommodation’
1A: California college holds public event on Islam, but chides questioners, calls cops, tries to stop videotaping.
1A: we should move back to the Founders’ understanding of libel and afford more protection to the expression of opinion
1A: Wolff ‘Fire and Fury’ book about Trump is speech funded by a corporation and thus protected by controversial Citizens United decision
1A: Federal Election Commission acknowledges it can’t ban political books
2A: The hidden hand of the Left: “‘March For Our Lives’ Now Operating Under Dark Money Nonprofit Advocacy Group”
2A: Gun grabbers out themselves – talk up “taking a huge number of guns away from a huge number of gun owners.”
4A: police violated right to privacy when forced defendant to masturbate to compare to pix sent to girlfriend
8A: Supreme Court declines to hear sweeping challenge to constitutionality of the death penalty
10A: Sessions is wrong; “nullification is as American as apple pie”
14A DP: South Carolina students’ challenge of Disorderly Conduct law may go forward; law too vague to give notice of what constitutes an offense
14A DP: challenge by civil detainee held 8 years under California’s sexual predator law may go forward (9th Circuit)
Supreme Court takes first Contract Clause case in a generation, could breathe life back into former cornerstone of limited government
Supreme Court passes up chance to end Auer Deference to federal agencies interpreting their own regulations
The Constitution is a contract and the Progressives have breached it with their ‘living document’ theories and judicial departures starting with the New Deal
Secession of the South proves the Constitution is a freedom document, not a slavery document.
Supreme Court 101: History and Basics. And, of course, Marbury v. Madison where the Court arrogated power it didn’t have under the Constitution
1A: How NOT to do the First Amendment – students throw rocks and damage vehicles during national school walkout
Shame! Nashville high school students tear down, stomp on U.S. flag during national school walk-out
In case you haven’t heard, the bail reform movement is definitely picking up steam. A federal lawsuit in Florida alleges that the state’s bail system is unconstitutional and seeks to force judges there to consider the defendant’s ability to pay when setting bail in misdemeanor cases. A bail reform task force in Ohio has developed a set of recommendations to prevent defendants from being kept in jail before trial simply because they cannot afford to post a bond. Mr. Liberal Moneybags Tom Steyer is funding efforts to change the bail system in California. Delaware has joined other jurisdictions in reducing reliance on cash bail, including Arizona, New Mexico, Maryland, New Jersey and the District of Columbia. In all, more than 40 states are considering changes to their bail and pretrial detention procedures. Among the alternatives being considered are ankle monitors and evidence-based risk assessment tools to gauge flight risk.
A class action suit in Houston, Texas alleges that Harris County’s system of setting bail for indigent misdemeanor defendants violates the equal protection and due process clauses of the 14th Amendment of the U.S. Constitution. In a preliminary ruling in February, the U.S. 5th Circuit Court of Appeals affirmed that the complainant class would likely succeed on the merits of its due process and equal protection claims. The case has been returned to the trial court for further proceedings. [Southern District of Texas #: 4:16-cv-01414]
The 14th Amendment states: “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Bail in Texas involves posting a 10 percent bond, usually through a bail bond agency, or being released on personal recognizance but becoming liable for the full amount if the defendant fails to appear for the court date. Under the Texas Criminal Code, a hearing officer or judge is supposed to review the defendant’s financial circumstances, flight risk, and other factors in setting bail. But personal recognizance is denied and upfront payments are required 90 percent of the time in Harris County which strikes me, based on my experience as a criminal defense attorney in D.C., as inordinately high for misdemeanor cases.
In Harris County, bail amounts are supposed to be reviewed by a different judge within 24 hours, but defendants routinely wait days, then come under tremendous pressure to accept time-served plea deals before they are even appointed a lawyer. In D.C., by contrast, indigent defendants are appointed lawyers up front before the first hearing. Harris County deems failure to own a car as a strike against personal recognizance, so there is a circular loop where indigence itself increases the likelihood that an indigent defendant will have to post cash bond. That’s weird. The trial court reviewed the data and found that the imposition of a financial bond does not make defendants any more likely to appear than personal recognizance does. The trial court also found that defendants who were detained because they couldn’t post a financial bond had worse outcomes than those who could. They pled guilty more often, got jail sentences more often, the jail sentences were longer, and these defendants were more likely to lose their job. The whole exercise appears to be counter-productive because these defendants were also more likely to commit other crimes in the future.
Harris County’s bail system treats similar flight risks differently based merely on financial circumstances. Under case law, imprisonment solely because of indigent status is considered invidious discrimination that offends both due process and equal protection. In this case, the 5th Circuit gave the bail reform movement a lot of what it wanted. Defendants must be given a meaningful opportunity to show what they can or cannot pay, the court ruled.
For you equal protection geeks out there, the 5th Circuit applied a heightened but intermediate level of scrutiny because inability to pay was resulting in deprivation of a basic liberty interest – freedom from incarceration.
Maybe I’m just a mushy-headed defense attorney, but Harris County’s bail system strikes me as unjust. However, the problem may not be the imposition of cash bonds per se, but the customary infrequency with which personal recognizance is granted in Harris County and other places around the country. I was talking about this with someone a few months ago. They said cash bond was a big problem in Philadelphia. I said it wasn’t a big problem in D.C. when I was doing criminal cases there. The difference may be that personal recognizance is pretty routine in D.C. for misdemeanor cases. Most misdemeanor defendants are released on personal recognizance and almost all show up for their court dates. Maybe the answer is as simple as setting the presumption in favor of personal recognizance in misdemeanor cases, while retaining cash bond for demonstrable flight risks. This would reconcile the competing interests at stake and afford adequate due process as well as equal protection of the law to indigent defendants. But regardless of how it’s done, we should all be able to agree that poor people should not be kept in jail or pressured to plead guilty simply because they don’t have any money.
5A: 9th Circuit allows climate change suit to proceed, sending case back to judge who believes “a climate system capable of sustaining human life” is right there in the Constitution
2A: NRA sues to block new Florida gun control measure raising age to 21, etc.
Separation of Powers: “Federal judge allows Trump to withhold grants to California as part of sanctuary city crackdown”
1A: “New Law Bans ’Free Speech Zones’ at Florida Colleges”; tucking speech away in a corner is unconstitutional
1A: Georgia colleges successfully resisting legislation to ban free speech zones; Christian speech tucked away in a corner
1A: Supreme Court deciding whether arrest on probable cause always bars a free speech retaliation claim; plaintiff hauled out of city council meeting in handcuffs
1A: “Tolerance doesn’t imply that you keep silent about speech that you hate. You challenge it, you mock it, and ridicule it; you criticize it.”
1A Religion: bill mandating elective course at all West Virginia schools to teach the Bible an unconstitutional sponsorship of religion?
1A Association: appellate court upholds power of NY Attorney General to demand nonprofits disclose $5,000 donors to him
1A Economic Freedom: North Carolina backs down from requiring make-up schools to get a license and carry useless classes
2A: rape victim files suit against ban on guns in Illinois public housing
2A: Chinese tyranny has midnight searches, arrests without a warrant – and a ban on owning handguns.
5A DP: Supreme Court rules statute does not require periodic bail hearing for detained immigrants; case sent back for consideration of constitutional issues.
5A DP: “US Judge bars revoking DACA work permits without due process”
14A DP: anti-bail movement picks up steam with backing from liberal billionaire Tom Steyer
Electoral College: suit filed to force states to replace ‘winner-take-all’ approach with proportional allocation
Separation of Powers: criminal case is an opportunity to revisit nondelegation doctrine; statute arguably defective for giving Attorney General unlimited discretion on a point
Library of Congress releases hi-quality scans of Madison’s notes to Constitutional Convention; now easy to check claims made by his detractors
New book chronicles epic struggle for women’s suffrage
On Wednesday, Attorney General Jeff Sessions announced a Justice Department lawsuit against California over its recently passed sanctuary state laws. In a speech to a law enforcement group in Sacramento, Sessions said, “Immigration law is the province of the federal government.... There is no nullification. There is no secession. Federal law is ‘the supreme law of the land.’" Sessions singled out the Mayor of Oakland specifically: “How dare you. How dare you needlessly endanger the lives of law enforcement just to promote your radical open borders agenda.” Despite the bravado, the outcome of the Justice Department’s case is not as clear-cut as it might seem.
We start with the Supremacy Clause of the U.S. Constitution. Article VI, Clause 2 clearly says federal laws, treaties, and the U.S. Constitution are the supreme law of the land. But the only power over immigration given to Congress in Article 1, Section 8 is the power to establish a uniform Rule of Naturalization – who gets to be a citizen. The idea that the federal government could regulate other aspects of immigration, such as the deportation of noncitizens, came from the Supreme Court, and not until 1889. In the Chinese Exclusion Case, the Court found that the federal government had plenary power over immigration as a matter of national sovereignty. The federal government has inherent sovereign power when it comes to immigration, the Court ruled.
Accordingly, the Supreme Court has typically held that federal law preempts state law when it comes to immigration. In 1941, the Supreme Court knocked down a Pennsylvania statute requiring aliens to register with the state and carry a state-issued ID card. [Hines v. Davidowitz (1941)]. The state statute was preempted even though federal immigration law did not expressly declare state registration statutes preempted, and even though the statute did not impede the implementation of federal law. Most later cases have reached similar results [Chemerinsky, Constitutional Law 4th ed. p. 413], but a 1976 case [De Canas v. Bica] found that a state could by law bar the employment of undocumented aliens. The Supreme Court found that Congress had intended to allow states to regulate the employment of illegal aliens to some degree.
In the new case announced Wednesday, the Justice Department is targeting three provisions of California law. One [SB 54] prevents state and local law enforcement officials from sharing information about criminal aliens in their custody and prevents their transfer to federal custody. Here, there’s a ‘commandeering’ issue. The federal government cannot make state and local officials enforce federal law. That’s a violation of the 10th Amendment. The wrinkle here is that a federal statute tries to get around this by prohibiting higher-level state and local officials from instructing their underlings not to share immigration information with the feds. Thus, the federal government isn’t actually ordering anyone to do anything. It’s all passive. One observer calls this a distinction without a difference and expects California to prevail on this issue.
A second provision [AB 103] allows state inspections of facilities where federal agents are holding immigrants pending court dates or deportation. Some of these facilities are owned by local governments and the state, others by private contractors. The Justice Department calls this an unconstitutional interference, an attempt by the state to regulate federal detention which depends on the state gaining access to privileged federal records. The other side of the argument is that these state inspections do not really conflict with federal requirements because they do not prevent the federal government from detaining anyone, nor do they obstruct the enforcement of federal law in any way.
A third provision [AB 450] prevents private employers, unless ordered by a court, from cooperating with ICE raids, or pay a fine up to $10,000. There’s an admission in the legislative history that California deliberately did this to frustrate “an expected increase in federal immigration enforcement actions.” In the Arizona case, decided in 2012, the Supreme Court held that state law is preempted if it obstructs an objective of Congress and thus stands as an obstacle to federal aims. Workplace raids are a standard immigration enforcement tool. Preventing employers from cooperating might well constitute an obstacle or obstruction of federal law. This appears to be the strongest part of the Justice Department’s case. However, the Arizona case also contains language which suggests that the federal government’s claims of obstruction will have to be examined individually and might or might not hold up to scrutiny.
To its defenders, California is not trying to make its own immigration laws, just restrict the extent to which the state and private employers assist in the enforcement of federal law. To Jeff Sessions, the federal government is “simply asking California and other sanctuary jurisdictions to stop actively obstructing federal law enforcement.”
The Justice Department is asking for a preliminary injunction, so we should get a preliminary ruling from a federal judge fairly soon.
Supremacy Clause v. 10A – Trump admin sues California over sanctuary laws; other jurisdictions might also be sued
2A – Suit against Dick’s and Walmart for refusing to sell gun to 20-year-old looks like a winner under Oregon public accommodations statute
1A: former union boss supports ending mandatory nonmember dues; unions should have to work to appeal to people
1A: if unions lose forced dues case, expect many unions to look for workarounds to keep the money flowing
1A: No way Trump would win if he sues publisher of ‘Fire and Fury’ book; freedom demands tolerance of misinformation
1A: Michigan town blocked from prohibiting anti-abortion signs on city sidewalks; protected speech even though pictures of aborted babies disturbing
Virginia lawmaker (and U.S. Senate candidate) Nick Freitas on how Democrats prevent gun debate – hard to converse when called Nazis, NRA whores
2A: Cuba provides another example from history where disarming the people led to tyranny
2A: Condoleezza Rice’s father used guns to protect himself from the KKK in the 1960s
5A Property Rights – Supreme Court takes case that could overturn Kafkaesque process of exhausting state remedies only to find door to federal courthouse barred
8A: “Should a Fine's "Excessiveness" Turn Partly on the Defendant's Wealth?”
8A: “Does the Excessive Fines Clause Apply to the States?”
Economic Freedom - Fruit-of-their-labor clause in North Carolina state constitution may help private businesses that want to challenge regulations
Sharia incompatible with U.S. Constitution in a number of ways – self-governance, free speech, equal protection, cruel and unusual punishment, etc.
State Bar going to almost every 5th-grade classroom in Wyoming to teach Constitution and Bill of Rights
Law professor Randy Barnett starts video series on major Supreme Court cases
‘Restaurant Asks Black People to Pay More’. Then I woke up.
The law on partisan gerrymandering is a big sprawling mess. Tonight, I try to untangle some of it for you. Send a search party if I don’t re-emerge from the thicket.
The main constitutional provision that applies is the Equal Protection Clause of the 14th Amendment. This gives rise to the notion we’ve all heard of - ‘one-person, one-vote’. If districts were drawn in a straight-forward way, you would expect the end results to reflect the relative political strength of the parties. Gerrymandering is the practice of going beyond relative political strength and drawing election maps to favor the party in power and disadvantage parties out of power. But how much of a deviation from one-person, one-vote can there be before a map violates Equal Protection? 5 percent? 10 percent? Nobody knows. The Supreme Court has never enunciated a numerical test. Moreover, there are multiple ways to get to one-person, one-vote. To give a simple example, in an election with 10 seats, a party with 60 percent of all the voters could draw a map with six districts where they are in the majority and four districts where the other party is in the majority, or they could try to draw a map where they are the majority in all 10 districts. And those aren’t the only possibilities.
Gerrymandering also raises First Amendment issues. Districts drawn in a partisan way can deny free speech and the right of association where the disfavored party’s candidate has little chance to win, thus denying a political minority a fair chance to influence the political process. As if this weren’t enough, state constitutional provisions may also apply.
The Supreme Court has never struck down a map for being too partisan. In a 1973 case [Gaffney v. Cummings], the Court said it’s impossible to separate politics from the process of drawing electoral maps, so a map cannot be invalidated simply because politics are at play. The Court reiterated the one-person, one-vote formula and said maps would generally be upheld unless a litigant could prove racial or other type of discrimination. In a 1986 case [Davis v. Bandemer], Indiana Republicans drew districts resulting in the Democrats, who had 52 percent of the statewide vote, only ending up with 43 of 100 state legislative seats. This is where it gets messy. Six Justices of the Supreme Court agreed redistricting cases could be heard and not simply turned away under the Supreme Court’s political questions doctrine. Seven Justices upheld the map, four finding no constitutional violation and three by concluding it was a political question. There was no majority opinion for the Court. The disarray continued in a 2004 case [Vieth v. Jubilerer], where four Justices were of the opinion that gerrymandering cases always present nonjusticiable political questions. These Justices believed that there are no discoverable or manageable standards to decide such cases and, therefore, no basis to tell whether the Constitution had been violated. Justice ‘Swing Vote’ Kennedy voted with these four, thus deciding the case. He agreed no standards existed at that time, but standards could be developed in the future. Gerrymandering cases would not necessarily always present nonjusticiable political questions, in his view. Again, no majority opinion for the Court. A 2006 case [League of Latin American Citizens v. Perry] reinforced the impression that the Supreme Court is not anxious to get in the business of deciding the Constitutionality of electoral maps. [This paragraph is based on Chemerinsky, Constitutional Law, 4th edition, pp. 139-141 and 911-914.]
Yet, the Supreme Court currently has before it at least four redistricting cases – out of Maryland, North Carolina, Wisconsin and Pennsylvania. The Pennsylvania case is dramatic because the Democrat-controlled state Supreme Court not only invalidated a Republican-drawn map, it drew its own, issuing it before the deadline it had given the Republican-dominated legislature to draw a new map had expired. Republicans are asking the U.S. Supreme Court for an emergency stay of proceedings until the Supreme Court decides whether or not to take the case. Among other arguments, the Republicans are invoking Article I, Section 4 of the U.S. Constitution – the Elections Clause – which says state legislatures, not state Supreme Courts, shall prescribe the time, place, and manner of Congressional elections, subject to Congressional override.
We won’t know for some months whether the cases currently before the Supreme Court will provide any real guidance in redistricting matters. Stay tuned.
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