Flurry of Supreme Court Decisions
1A Religion: Peace Cross memorial in Maryland is constitutional, per Supreme Court.
Separation of Powers: Supreme Court upholds broad delegation to administrative agencies for now, but Alito signals addition of Kavanaugh voting could in the future cause Court to reinvigorate non-delegation doctrine
5A: Supreme Court overturns precedent, rules eminent domain plaintiffs can sue in federal court without exhausting state remedies
Discrimination: Supreme Court vacates death penalty in case, rules potential jurors cannot be excluded based on race
Due Process: Justice Gorsuch writes for Supreme Court in striking federal ‘crime of violence’ provision as unconstitutionally vague
1A: Supreme Court strikes down federal prohibition on ‘immoral, scandalous’ trademarks in FU*T case
5A: pregnancy centers can compete with abortion clinics for Title X funds (9th Circuit - reaffirms government has no duty to subsidize an activity just because it’s permitted)
Federal judge bars ICE from making civil arrests of illegal aliens in Massachusetts courthouses (‘right of access to the courts’ grounded in various provisions)
Shame! (again) - U.S. women’s national soccer team star who won’t sing the national anthem tweets “I’m not going to the f**king White House!” What have you done, personally, to help maintain the Republic?
Shame! Communists and assorted others will burn the American flag at Trump 4th of July rally (just because you constitutionally can doesn’t mean you should)
Shame! George Washington High School in San Francisco will spend half a million dollars to cover up mural of George Washington because it ‘traumatizes’ the students. OK, and when you’re done tearing down the country, then what, exactly?
Conservatives seem to like the result in the Peace Cross case handed down by the Supreme Court this past week but the case doesn’t really say very much about what will happen in future cases involving memorials and displays.
The Court decided 7-2 that a 40-foot World War I memorial in Maryland in the shape of a cross is not an unconstitutional ‘establishment of religion’ in violation of the First Amendment. The memorial can stay on government land and be maintained with taxpayer money, under the Supreme Court’s decision. [American Legion v. American Humanist Association]
The result is clear, but the Court’s reasoning is a complete mess. The seven Justices in the majority split five different ways. Justices Alito, Roberts, Breyer, and Kavanaugh suggested the 3-part Lemon test from the 1970s [Lemon v. Kurtzman] does not apply to cases involving “longstanding monuments, symbols, and practices.” The Peace Cross is 95 years old. Writing for this group, Justice Alito, perhaps taking a cue from former Justice Anthony Kennedy in the Masterpiece Cakeshop case last year, suggested that “A government that roams the land, tearing down monuments with religious symbolism and scrubbing away any reference to the divine will strike many as aggressively hostile to religion.”
Justices Breyer and Kagan wrote in a separate opinion in the Peace Cross case “there is no single formula for resolving Establishment Clause challenges.” Justice Kavanaugh, writing by himself, suggested a new 4-part test to replace the old Lemon test. Justice Kagan, in another opinion, wrote in favor of two parts of the Lemon test, but said the other part was “problematic”. Justice Gorsuch wrote that the Lemon test is indefensible and that merely being offended by a memorial or display should not be enough to get someone in the courthouse door to challenge it. Justice Thomas wrote he would overrule Lemon outright because it “has no basis in the original meaning of the Constitution.”
So there you have it, whatever it is. The results apply to exactly one case and no new guidance was given for future cases.
The root of the problem, as I have suggested before, is that the Supreme Court in effect took the Establishment Clause out of the Constitution and replaced it with its own made-up ‘endorsement clause’. Under Supreme Court precedent, government can violate the Establishment Clause just by favoring one religion over another, appearing to approve or disapprove of a particular religion, making members of other religions feel unwelcome, or otherwise ‘endorsing’ a religion. Going this route doomed the Court to having to confront an endless stream of cases about memorials and displays, each of which has to be decided on fine shadings of fact with no real guidance for the next case.
This is not at all what James Madison had in mind when contemplating religious liberty. He saw real religious persecution in his own colony of Virginia, with the government setting up an official state religion and throwing preachers with contrary views in jail. The Establishment Clause, in Madison’s view, was meant to protect “individual liberty of conscience”. Nativity scenes and war memorials in the shape of a cross would not have troubled Madison because they don’t even come close to establishing an official state religion like the one in colonial Virginia.
Justices Thomas and Gorsuch wrote in their concurrences in the Peace Cross case that the Supreme Court should return to the original public meaning of the Establishment Clause, which, as Madison said, protects liberty of conscience and prevents official state religions that compel belief and support.
It takes a long time for Supreme Court jurisprudence to change. It’s plausible that the Thomas-Gorsuch school of thought will eventually carry the day, if only because the Supreme Court has made such a complete mess of things with its ‘endorsement’ approach and does not seem to be able to extricate itself from its own intricacies any other way. Three generations of imbecile decisions is enough. It’s time to throw in the towel and restore the Establishment Clause to its original meaning.
1A: Public access cable TV is not the government and free speech rules don’t apply, Supreme Court decides (implications for social media)
4A: ICE can’t use a search warrant for employment records as a pretext to round up 130 illegal aliens in a workplace raid (9th Circuit)
1A Establishment: Atheist group drops suit challenging tax exemption for clergy housing; exemption is not sponsorship or active involvement of government in religion
5A Double Jeopardy: Supreme Court lets stand lower court ruling allowing federal and state prosecutions for the same conduct; implications for Trump pardons
4A: Carpenter won his case at the Supreme Court last year, but warrantless search of his cellphone location data was in good faith, so he stays in prison (6th Circuit)
1A: Cleveland to pay $225K to man arrested for burning U.S. flag.
1A: President Trump supports constitutional amendment prohibiting burning U.S. flag
1A: Texas becomes 17th state to enact campus free speech legislation
1A: Vermont ‘revenge porn’ statute facially constitutional, but posters not in romantic relationship with the person affected escape the statute’s reach (Vermont Supreme Court)
Free Expression: French government brings criminal charges against political leader Marine Le Pen for posting truthful pictures of ISIS atrocities
2A: Guns used far more often in self-defense than in crime
2A: Virginia Beach killing ground was a gun-free zone (duh!)
4A,14A: Michigan’s practice of storing blood samples from every newborn may violate children’s 4th Amendment rights and parents’ 14th Amendment right to direct their children’s medical care
8A: report finds civil asset forfeiture does not help police solve more crimes as claimed; forfeitures spike up when local economies are depressed
8A: serving prisoners only two meals a day is constitutional as long as calorie count is maintained (7th Circuit)
14A: building inspector so biased against Asians he issues them violations while off duty; probable equal protection violation (2nd Circuit)
14A: Michigan AG says question of state agencies puffing up sex discrimination to include sexual orientation and transgenderism is before Supreme Court, so she doesn’t have to follow previous AG’s opinion that the puffing up in her state was invalid. Huh?
Commerce Clause: homophobic assault at Amazon facility affects interstate commerce ‘in the aggregate’, justifying federal Hate Crimes Act prosecution, so says 4th Circuit panel
“Constitutional Text and State Sovereign Immunity”
Shame! U.S. women’s national soccer team star won’t ever sing the national anthem or put her hand over her heart again because U.S. is so horrible bad unjust and unequal. You’re benefitting from representing the U.S., lady. Why don’t you have the courage of your convictions and get off the team, huh?
1A: Supreme Court turns away atheist group challenge to ‘In God We Trust” on U.S. currency
1A: Alabama bans free speech zones on public college campuses, stops use of ruinous fees for disfavored speakers
Civil Rights: Supreme Court to decide whether Comcast’s refusal to carry black-owned network was discrimination or ordinary business decision
Electoral College: “Oregon Joins National Popular Vote Compact”
1A: Washington Supreme Court requires florist to serve same-sex wedding, rejects compelled speech and religious animus arguments.
1A: disciplining officers for leaking word after cover-up of meth in mayor’s son’s backpack is probably unconstitutional retaliation
2A: “Washington Gun Owners Face Orwellian Dystopia With Implementation Of I-1639”
2A: Supreme Court turns away challenge to federal law requiring registration of silencers; lower court held silencer is an accessory not protected by the Second Amendment
4A: an initial warrantless search turned up drugs which were then used to apply for a warrant for a second search, upheld because plenty of other evidence supported the warrant application (7th Circuit)
4A: tip that black man was carrying a gun does not justify a police stop; carrying a gun is presumptively lawful (9th Circuit)
6A: California appellate court ducks question whether Muslim garb covering witness’ face violates right of confrontation; decides on facts presented allowing witness to testify partially covered was harmless error
Separation of Powers: Supreme Court will decide whether to take the case of ‘Frankenstein’ D.C.-area airports authority which is “neither accountable to the federal government nor the states that created it”
Copyrights: Supreme Court takes up whether federal cancellation of state immunity for copyright infringement is constitutional
“Former Antifa Activist Now Fights for Free Speech on College Campus”
Sharia and the Constitution series from the United West, Pts 1 and 2
Shame! D.C. gay pride parade bans American flags
Some government officials still haven’t gotten the message from the revolt that followed the Supreme Court’s overreaching Kelo eminent domain decision. Kelo, you may recall, puffed up eminent domain to allow governments to take private property for public benefit and economic development, not just for public use like a road. So, in New London, Connecticut, private homes were taken and transferred to another private owner for a medical research lab that was never built, all for the sake of economic development. After Kelo, 45 states enacted some kind of reform measure to rein in the use of eminent domain for economic purposes.
Rapacious Baltimore didn’t get the memo, however. In March, it filed a lawsuit to condemn the Preakness Triple Crown horse race - not just the Pimlico race track where the race is run, but the horse race itself.
Now comes the federal government which wants to get away without paying a dime for an airport terminal in Texas that was built and maintained with private investor funds and a lower court said was worth more than $133 million. The facts in the Love Terminal case [Love Terminal Partners v. United States] are convoluted, but the important point for present purposes is that the government says the terminal, now destroyed, was worthless because it had no tenants and was not earning a positive cash flow. Therefore, the government says - and the appeals court in this case agreed - no just compensation for the exercise of eminent domain is due.
However, by that logic, if the government decides to take any church or synagogue in the land - or any idle farm in the country waiting for a new owner to come work it - the government can get away with seizing the property and refusing to pay just compensation when these things clearly have value. Places of worship may not ever turn a profit, but they clearly have monetary value. Commercial assets may not be making a profit at the time the government decides to seize them, but they still have value. Doesn’t getting them for free sound too good to be true? More importantly, wouldn’t that be exactly the wrong signal to send to what is supposed to be limited government whose job it is to protect our rights, not line its own pockets at our expense?
There was a perfectly good doctrine in eminent domain law in use for decades - a property is worth what a willing buyer would pay in cash to a willing seller for it. There is no good reason I can see to replace it with a new doctrine that essentially says ‘we can take your property for free if it’s not earning anything at the moment, even if we’re the ones who caused your revenue to dry up.’
The Supreme Court has not yet decided whether to take the case, but it should. There’s a lot at stake here.
Kamala Harris made news this past week by proposing that state laws restricting abortions be subject to preclearance by the U.S. Justice Department. The proposal is modeled after the preclearance provisions of the Voting Rights Act of 1965 which forced state and counties with a history of discrimination to get preclearance from the federal government to make changes in their election procedures. The Feds blocked 86 measures in several states under voting rights preclearance. Preclearance for abortion restrictions could have just as big an impact - abortion restrictions have been enacted in ten states so far this year.
In 2013, the Supreme Court knocked down part of the voting rights preclearance scheme. The Court found that the formula used to determine whether states were still discriminating against minority voters were out of date and the Justice Department was acting like nothing had changed in the last 50 years when it clearly had. As applied, preclearance had become unconstitutional, violating the Tenth Amendment. [Shelby County v. Holder, 2013] “The Tenth Amendment reserves to the States all powers not specifically granted to the Federal Government, including ‘the power to regulate elections.’” Id. The Court found that the federal government could not disrupt the “equal sovereignty” of the states - that is, treat them differently from each other - on the basis of out-of-date information. [more here]
But here’s the rub: the Supreme Court did not say preclearance itself is unconstitutional or against the Tenth Amendment. Instead, it said Congress can mandate preclearance under “exceptional conditions”. Literacy tests and poll taxes were the “exceptional conditions” justifying preclearance in the voting rights context.
The analysis in the abortion context is different, and is of no comfort to friends of limited government. States have the power to regulate elections, but the Supreme Court declared a federal fundamental right to abortion in the Roe v. Wade case. The Court federalized the abortion issue and didn’t leave much in the way of state power on the issue. States can try, even citing health and safety concerns, but state restrictions on abortion can get knocked down if they are deemed an “undue burden” on the federal fundamental right to abortion. This has been the basic set-up since the Planned Parenthood v. Casey decision in 1992.
We may not like it but, because of the way constitutional law has gone in this country, a President Kamala Harris would have at least as strong a case in asking Congress to enact preclearance in the abortion context as there was in the voting rights context. She can cite all the recent attempts to restrict abortions, claim that the heartbeat and other types of bills are “undue burdens” on the right to abortions, and say to Congress “exceptional conditions” exist to justify preclearance and require affected states to come begging to Washington before their legislatures can even take up any abortion bills at all. She’s not crazy, and that’s a problem for friends of the Tenth Amendment and limited government.
Supreme Court Can Run but Can’t Hide from Transgender Bathroom Issue (Constitution news round-up)
Discrimination: Supreme Court ducked transgender bathroom case but issue isn’t going away; Justice Ginsburg in VMI case and WaPo op-ed wrote in favor of individual privacy.
Electoral College: Nevada Governor vetoes national popular vote bill, noting small states slitting their own throats by trying to skirt the Electoral College
1A Religion: Catholic foster care agency again challenging city policy forcing child placements with LGBTQ parents
Separation of Powers: 9th Circuit panel hears arguments in Climate Kids case seeking to establish fundamental right to sustainable environment; judge questions whether court has power to grant sweeping relief sought
1A: Supreme Court rejects Pamela Geller transit ad case, sends it back for lower court opinion
1A: “Who Owns Your Life Story?” 4th in series of 1A videos released
1A: Kentucky subpoenas to identify teachers who staged a sick-out to protest at state capital likely not a free speech violation
1A: law that lets you disclose all the facts in ethics complaint against Montana officials, but not the complaint itself, violates First Amendment
2A: Qualified noncitizen lawful permanent residents can’t be shut out from concealed carry permits (federal judge in California)
4A: police had reasonable suspicion to stop a second car apparently driving in tandem with a first car about which a tip had been received as carrying heroin. (6th Circuit)
5A Eminent Domain: commentary to effect government should not be able to get away with not paying just compensation just because asset not earning positive cash flow at the moment (Love Terminal case)
8A: “Excessive Fines Clause Applies to Corporations” (Colorado Supreme Court)
10A: Kamala Harris federal preclearance proposal for state abortion restrictions would upset federal/state balance
14A Equal Protection: Poisonous civil rights theories push racism under the guise of ‘racial equality’ (check your privilege, equality of outcome, etc.)
Separation of Powers: House attempts to keep alive federal FGM prosecution under a statute ruled unconstitutional and which the Justice Department has chosen not to defend on appeal
State Constitutions: Alabama Senate unanimously passes amendment to exclude noncitizen voting; measure to appear on 2020 ballot
Economic Freedom: 2 court rulings against food trucks overreach in “prohibiting you from operating near your competitors, or tracking you like a criminal out of fear you may sell delicious food to willing customers.”
State Department commission to examine whether ‘human rights’ offend U.S. concepts of natural law and natural rights
Shame! Barack Obama asserts “We hold these truths...” comes from the Constitution when in fact it comes from the Declaration of Independence
Kudos! “St Louis Blues Fans Finish National Anthem when Video System Fails”
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