1A: judge rules Steele dossier is protected free speech; Russian oligarchs failed to show Steele acted in reckless disregard of the truth regarding them
Article II: Trump exceeded his authority in 3 executive orders meant to curb union power in federal workplace
Article I, Section 8: no ‘space force’ in the Constitution. Constitutional? Air Force not ‘army’ or ‘navy’ either.
Equal Protection: Labor Department issues guidelines to stop discrimination against religious federal contractors
14A: federal court knocks down North Carolina congressional map (again), but Supreme Court has never struck partisan gerrymandering thus far
8A: California becomes 1st state to end bail before trial in some cases
4A: Airbnb sues New York arguing law requiring detailed info about owners amounts to seizure of business records without a warrant based on probable cause
Speech Suppression: Credit card companies back off attempt to shut off donation processing services to David Horowitz’ Freedom Center; blow struck against SPLC’s hateful ‘hate group’ designations
Credit card company attack on David Horowitz’ Freedom Center is another instance of political bias in public accommodations – is FDIC involvement in credit card bank deposit insurance enough to trigger ‘state action’ requiring 14A equal protection?
Robert Spencer book shows how the authoritarian intolerant Left helps Islamists enforce sharia blasphemy codes to further its own purposes in shutting down freedom of expression
1A Religion: New Florida law requires ‘In God We Trust’ be displayed in all public schools; author takes direct aim at ‘separation of church and state’
1A,14A: lawsuit hopes to add tuition for religious schools to school choice program in Maine
4A: tight handcuffs can be an unreasonable seizure in violation of the Fourth Amendment, 6th Circuit finds
5A Takings: a taxi medallion is not an exclusive right to provide transportation services; diminution of value by allowing Uber-type rides is not a ‘taking’ (3rd Circuit)
6A: An attorney has the right to be informed of the right to an attorney (6th Circuit)
7A: Supreme Court’s approach to guaranteeing jury trials in suits at common law (as opposed to equity) heavily criticized
14A Equal Protection: Idaho discriminated against landowners by forcing them to sell their oil and gas to a Texas company without a meaningful way to fight the decision, federal judge rules
14A Equal Protection: HUD sues Facebook for allowing homeowners and landlords to limit viewing of their ads based on race, religion, gender, etc.
14A Equal Protection: Cautionary tale for Harvard – San Francisco schools forced to drop their anti-Asian quotas 20 years ago
14A Due Process: courts reshaping the way campus sexual assault cases are handled, requiring more questioning of
each other when it’s ‘he said, she said’
Dormant, Foreign Commerce Clauses: U.S. court upholds local ordinance prohibiting bulk loading of crude oil onto tankers
Economic freedom lecture series starts at Arizona State U
Economic freedom – Legal institute criticizes Georgia law requiring licensure of lactation consultants, 2 years of college and 300 hours of clinical experience
Economic freedom has been great for women; household appliances have freed them from drudgery and jobs have given them economic independence
State Constitutions: proposed Ohio amendment would restrict profits and increase regulation at dialysis centers
Chinese enthralled with ‘constitutionalism’ but their ‘guarantees’ of free speech, press, and association are meaningless and unenforceable without true Rule of Law
Podcast describes the life and work of abolitionist Frederick Douglass
Shame on Robert Reich! Wants Trump presidency “annulled” when there is no such thing in the Constitution. Appalling coming from a former cabinet member.
Shame on Beto O’Rourke for praising football players for taking a knee. We don’t need people who tear down the country in public office.
Shame! UC-Irvine student government leader Matthew Guevara pens resolution to ban U.S. flag, but takes taxpayer money for his education from a U.S. government engaged in modern-day “slavery” and “genocide”
Shame on the Georgia high school teacher who teaches her students that 9/11 was America’s fault. If we’re that bad, why do you take our money?
Victory! Atlanta school drops plan to replace Pledge of Allegiance with wolf-pack chant
It was reported this last week that CNN and MSNBC used the word ‘impeachment’ 222 times in a single day. Tonight, we take a closer look at the constitutional standards for impeachment.
Article II, Section 4 of the U.S. Constitution says the President, the Vice President, and all civil officers of the United States shall be removed from office on impeachment by the House and conviction by the Senate for treason, bribery, or other “high Crimes and Misdemeanors”. Treason and bribery are fairly clear-cut, but what are high Crimes and Misdemeanors?
Basically, they are whatever Congress says they are, because impeachment is at root a political process, not a criminal process. But this should not mean that anything goes when impeaching a President.
The Framers of the Constitution quite consciously borrowed the term from England where it was a well-established legal term of art in use for 400 years. It was used to describe a delegation of power to legislative bodies to determine and punish official misconduct on the part of a wide variety of executive and judicial officers. Over those 400 years in England, the term was used in practice to check the power of the King’s ministers and judges for disobeying the laws, infringing the rights of the people, interfering with the prerogatives of Parliament, abusing the power of the office, and being incompetent or corrupt. This went well beyond criminal offenses, to political crimes like subverting the system of government.
Interestingly, our Framers went beyond the English practice and applied impeachment to the chief executive, whereas the British did not subject their King to this remedy.
The Framers considered other terms – “malpractices or neglect of duty”, “corruption”, “corrupting his electors”, “treachery”, “abusing his power”, “perfidy”, “peculation” (which means self-dealing), “oppression”, “betray(ing) his trust to a foreign power” - but ended up rejecting them all. George Mason argued that these other terms were not broad enough and left many grave offenses out, like “subverting the Constitution” short of treason. “Mal-administration” was considered, but it was decided it was too vague. So they settled on “high Crimes and Misdemeanors” in part because it was defined by 400 years of English usage and practice to include important concepts like abuse of power, and to exclude ordinary political disagreements. Thus, it is clear that the term does NOT mean crimes and misdemeanors in the ordinary sense of today’s criminal law.
This broad understanding of “high Crimes and Misdemeanors” was reflected in the ratification debates in the states after the U.S. Constitutional Convention in Philadelphia in 1787. But we will have to wait for our own history to unfold further before we will know the precise meaning of the term in American constitutional law.
“The Original Meaning of “High Crimes and Misdemeanors” (2 parts)
Government trying to force Facebook to break encryption, allow wiretapping of messenger (Constitution news round-up)
4A: in case under seal, government trying to force Facebook to break encryption, allow wiretapping of messenger
Article II: Constitutional showdown looms if Mueller subpoenas Trump
1A: Brennan could challenge loss of security clearance on grounds he has a right to be protected from government retaliation for exercising free speech
1A: federal appeals court sends D.C. transit authority ban on anti-Islamist ads back to trial court to consider whether there is a legitimate reason for the ban
1A: David Daleiden seeks dissolution of gag order blocking release of more Planned Parenthood baby parts videos after plaintiffs drop several claims (prior restraints are supposed to be rare)
2A: Louisiana bars Citi, Bank of America from state bond sale because of actions the banks took against gun manufacturers
1A: Pennsylvania high court rules rap song urging violence against specific named police officers is a “true threat” not protected by First Amendment
1A: National Park Service admits mistake in barring ‘Abolish ICE’ t-shirts from Statue of Liberty; illegal viewpoint discrimination
Satanic goat idol unveiled at Arkansas Capitol building to push separation of church and state
“How Some Muslim Activists Are Using Speech Codes to Subjugate the West and How to Respond“
1A Press: Florida judge scolds newspaper for printing confidential information about Parkland shooter, threatens prior restraint in the future, but the law appears to be on the newspaper’s side
1A Religion: religious charity to appeal ruling that upheld Philadelphia’s ban on families holding traditional views of marriage from becoming foster-parents.
2A etc. – federal appeals court upholds Texas concealed carry law against challenge by professors who do not want guns in their classrooms
4A: Smart meters (disclosing home/away, sleep patterns, etc.) are a “reasonable” search not requiring a warrant (7th Circuit)
4A: ‘private search reconstruction’ doctrine validates government search of computer file that recreates previous private search (5th Circuit)
4A: Iowa high court criticizes U.S. Supreme Court, uses state constitution to knock down inventory searches of cars without a warrant
14A Due Process: federal judge rules election officials can’t toss absentee ballots that fail to match signature card without giving voter notice and opportunity to contest
Ex Post Facto – taking away ‘good time’ credits already earned by prisoners violates ex post facto clause (6th Circuit)
5A, Copyright: legal institute takes case of tiny family–owned publisher who prints public domain books on demand; Copyright office wants copies and has threatened big fines
State Constitution: Georgia high court rejects appeal from state House candidate who was removed from the ballot because she had not been a Georgia citizen for 2 years
Rights to healthcare, jobs, free tuition, etc. - Soviet constitution? Nope. Democratic Socialist agenda.
Government playing fast and loose with the Constitution in 100-mile border zone
Separation of church and state, judicial review, and other common myths people believe about the Constitution
Shame on Andrew Cuomo for saying America never great. Every immigrant who came through Ellis Island in his state knew the truth and risked all to come here.
Week before last, two socialist authors were granted space in the august New York Times, no less, to push their poison that the U.S. Constitution is an “outdated relic” expressly intended to subvert democracy.
The authors are an editor and writer at Jacobin magazine, a socialist publication which doesn’t mind engaging in the quintessentially capitalistic practice of selling advertising.
The authors make a number of blithe assertions which I will demolish shortly. But, overall, to hear the authors tell it, you’d think the Constitution had unleashed a bloody Reign of Terror. Oh, wait a minute, that was the Jacobins in France in the socialist French Revolution of 1789. Thanks to the authors’ namesakes, France didn’t have a stable government again for 75 years.
The authors assert that the Constitution is “the foundation for a system of government that rules over people,” rather than a means of popular self-government. This shows a complete misunderstanding of the Constitution. The Constitution begins with “We the People” because we have popular sovereignty. We the People rule ourselves; we don’t have a King George ruling over us.
But the authors are right in one respect. The Constitution did not set up a pure democracy, and good thing it didn’t. The Founders were concerned with preventing mob rule and the tyranny of the majority, both of which develop under pure democracy. Even with all our system’s checks and balances, we’ve had instances in this country where one side has gotten too powerful and rammed stuff down our throats, like Obamacare and the New Deal. Do we really want modern-day Jacobins ramming single payer down our throats with real death panels this time - guillotine squads? That’s why the Founders gave us a Republic, as Ben Franklin famously said - to temper the passion of factions with ways for cooler heads to prevail. Warring factions gave England a dictator-for-life, Oliver Cromwell. The Founders knew this history and worked around it accordingly. Property rights, which the socialist authors criticize, actually reinforce self-government, because property gives people freedom and independence, power they wouldn’t have if the government owned everything as in a socialist system. Property rights are best understood as a pillar of popular sovereignty.
The authors say the Constitution prevents redistribution of wealth and the creation of new social guarantees. This is just crazy talk. The authors act as if as if the New Deal, the Great Society and other redistributionist programs never happened, and that we never racked up a $21 trillion national debt as a result.
The authors criticize “the Bill of Rights’s incomplete safeguards of individual freedoms.” There’s something bone-chilling about Jacobin socialists talking about safeguarding individual freedom. They are the self-proclaimed descendants of the French Jacobins who chopped people’s heads off after so-called ‘trials’ that didn’t have any due process whatsoever, or even pretend to dispense justice. When the masters of mob rule start talking about protecting individual rights, run for the hills.
Newt Gingrich just wrote about the horrors of the French Revolution for Fox News. He referred to a book in which the author recounts a story about the French Revolution that tells you everything you need to know about Jacobin socialists: “a woman was charged with the heinous crime of having wept at the execution of her husband. She was condemned to sit several hours under the suspended blade which shed upon her, drop by drop, the blood of the deceased whose corpse was above her on the scaffold before she was released by death from her agony.” This is the intellectual pedigree of the Jacobin authors, whether they want to admit it or not.
The authors don’t want to throw out the entire Constitution like their more revolutionary comrades farther Left, just amend it. Specifically, they recommend a unicameral one-house legislature, and making it easier to amend the Constitution through national referendum. There are good reasons why the Framers didn’t give us either one.
They had the example of the unicameral Pennsylvania legislature which ping-ponged between partisan extremes after each election. This experience and others convinced the Framers that an upper house representing economically successful people was necessary to tame the passions of the bulk of the population who were seen as represented by the lower house. The Framers had the wisdom of the ages on their side on this one. Read the history of political theory from antiquity on down and you will find something called the “mixed constitution” – a government that mixes democracy with meritocracy, that is, the elements of popular representation with some kind of contribution by people who are more versed in governance than the average Jane or Joe. The history of political theory shows that you can’t have political stability without allowing both these elements to participate in government. Leave either element out and you will have nothing but fractiousness and trouble. Our two-house Congress was the Framers’ version of a mixed constitution which succeeded, unlike the French Jacobins, in ensuring political stability.
As for amending the Constitution more easily through national referendums, that would be more problematic than democratic. The Founders deliberately made it hard to amend the Constitution, so people don’t get carried away. But it’s not THAT hard. As I mentioned in a previous webinar [March 19, 2017], it only took one college student 10 years to get the 27th Amendment passed and ratified.
Let me end with three cheers for our Republic and our mixed constitution. It is because of them we have limited government, not the stronger federal government the authors want. No guillotines here.
As for the authors - Off with their heads! Figuratively speaking, of course. Unless I can gather a big enough mob.... Just kidding!
1A Religion: Colorado goes after Masterpiece baker AGAIN, this time for refusing to make special pink-and-blue transgender celebration cake.
Appointments Clause: federal judge upholds Mueller Special Counsel investigation as stemming from valid appointment, despite extraordinary powers that would seem to call for Senate confirmation
5A Due Process: 9th Circuit rules foreigners outside the U.S. are protected by the Constitution. Implications include border agents shooting across the border.
5A Due Process: 19 state Attorneys General demand constitutionally protected right to abortion for illegal immigrants
1A: federal judge orders anonymous online account information of a 2017 Charlottesville ‘Unite the Right’ organizer be given to another court; anonymity and incitement of violence are issues.
1A, Economic Freedom: federal judge strikes down Charleston’s tour guide licensing requirement as interference with right to speak for a living
1A Speech/Association: U of Iowa shuts down 38 student groups that have faith or ideology requirements for their leaders, gets sued, reverses course while litigation pending
Query: How does it discriminate if everybody gets their own group and chooses their own leaders?
1A: U.S. appeals court strikes Louisiana statute against threatening public officials as unconstitutionally overbroad; sweeps in lawful actions like threatening to sue
1A Press: de Blasio bodyguards eject reporter who tried to ask question at parade event
1A Religion: male Muslim prisoner objects to strip-search by transgender (anatomically female) guard. Intersectionality pretzel: Does transgender trump Muslim, or is it vice versa in the pantheon of rights?
1A Religion: What is a religion? Pussy Church of Modern Witchcraft gets special tax exemption from IRS as a church
2A Hypocrisy Exposed – former congressional candidate in Georgia who pushed gun control shoots her campaign treasurer dead
5A: Threat to property rights from conservation easements is growing
5A: watch short video on sustainable development’s war on private property
5A: another federal court rejects claim that competition from Uber and Lyft is a “taking” of property from taxis
Eminent Domain: South African farmer discusses impending change to constitution to allow government to expropriate land from white people without compensation to give to black people (video)
14A,8A: homeowner fights ordinance requiring her to grow grass in her yard even though she’s allergic. $180K fine, 20 yrs in prison. Precedent recognizes government’s ‘aesthetic interest’
Time to revisit second-class status of U.S. citizens of the “insular” territories (Puerto Rico, Guam)
State Constitution: victims’ rights amendment urged for Pennsylvania constitution
State Constitution: 5 former North Carolina Governors oppose amendments regarding judicial vacancies and appointments to state boards and commissions
“How Religion Defends Freedom”
Impeachment: “The Original Meaning of “High Crimes and Misdemeanors” (2 parts)
“Can a Vice President be charged with a crime while in office?” (Burr, Agnew – who’s next?)
For the constitutionalist in your life - U.S. Constitution Full Size Four Page Reproduction. $19.95
Shame! Atlanta school drops Pledge of Allegiance, adopts ‘Wolf Pack’ chant. ‘Too many kids won’t recite’ so the only answer is to give up? Hope you have a country left to have your ‘Wolf Pack’ in.
Yo, socialists! There are reasons we don’t have a unicameral legislature and the Constitution is not easy to amend. Ever think about that?
Last night, I watched Invalidated, Tea Party Patriots’ new documentary about the patent system. The documentary does a good job laying out how the Patent Trial and Appeal Board – PTAB, as it’s known - is harming U.S. inventors and allowing American ingenuity to slip away to other countries. Ironically, communist China might end up with a stronger patent protection system than the United States.
Article I, Section 8 of the U.S. Constitution guarantees patent protection, giving inventors exclusive rights to their discoveries. The documentary emphasizes that investors always ask inventors whether they have a patent and will not put money behind an invention unless they do.
Enter the America Invents Act of 2011, which established PTAB. PTAB is an administrative tribunal that has the power to invalidate patents that have already been granted, even if they have been upheld by courts and juries. As shown in the documentary, one wing of the U.S. Patent and Trademark Office awards patents after thorough examination while another wing of the USPTO – PTAB – is very much inclined to invalidate them. This works to the advantage of shady operators and big companies who use PTAB to steal inventors’ ideas and rob them of any hopes of profiting from their own inventions.
Arguments against the constitutionality of PTAB were heard in the Supreme Court this year. Jenny Beth Martin discussed the Oil States case in an editorial late last year. Unfortunately, the Court went on in April 2018 to reject certain constitutional challenges to PTAB. Relying on previous Supreme Court precedent, Justice Clarence Thomas writing for the majority reiterated that the Supreme Court considers patents a mere “public franchise” like a concession to operate a city bike-share program – thus relegating patents to second-class status instead of recognizing them as full-fledged property rights. As second-class rights, patents can be awarded and invalidated wherever Congress locates that power, and courts need not necessarily be involved, thus shooting down the separation of powers argument.
The Supreme Court said that prior cases calling patents ‘property rights’ are “best read as describing the statutory scheme that existed at that time.” Also, the Framers had to have been aware that an administrative Privy Council had the power to cancel patents in England in the 18th Century, but did not expressly exclude such administrative action in the Patent Clause in the U.S. Constitution. The Court did say that patents remain property rights for purposes of the Due Process and Takings clauses. Gee, why am I reminded of the Obamacare case where the Court said it was a tax but not a tax? Such judicial backflips suggest that the Court just wanted to reach a certain result and nothing was going to stand in its way.
The Court finished off its opinion by giving short shrift to the 7th Amendment challenge under the same reasoning. Because patents are second-class rights that can be awarded and invalidated administratively, there is no right to a jury trial even though the 7th Amendment explicitly states that the right to take your case to a jury is guaranteed in lawsuits where the amount in controversy exceeds $20. Losing a patent can cost an inventor millions, if not billions, of dollars.
So here we have the Supreme Court treating patent rights like taxi medallions, which a taxi commission can grant or take away on a whim because they’re not really property rights. That just seems wrong to me, since patent protection was explicitly written into the Constitution and taxi medallions are not. What part of “exclusive Right” in the Patent Clause does the Supreme Court not understand?
It seems wrong to Justice Neil Gorsuch, as well. He noted in his dissenting opinion in the Oil States case that the practice of administratively canceling patents in the Privacy Council had disappeared by 1746, decades before the U.S. Constitution was written. Patents may have started as “public franchises” in English law way back when, but were accorded much more respect by the time of our Founding than were ordinary “public franchises” – like government-granted monopolies to operate toll bridges. Patent holders at that time, for example, had the right to go before an independent court. After Oil States, they still do but the judgments they receive in court can be wiped out later by the administrative tribunal PTAB.
That’s just bizarre, which suggests to me another constitutional challenge against PTAB which has yet to be made – if patents are still property rights for due process purposes as Justice Thomas wrote, how can they be taken away by an administrative agency after a court has already upheld them? How is that not a denial of due process of law? It might not be double jeopardy, because it’s not a criminal matter, but it’s every bit as unfair as trying a criminal defendant twice for the same crime.
Folks, we have another administrative monster on our hands, every bit as bad as IPAB under Obamacare – the decisions of which, purportedly, Congress could not reverse – and the CFPB (the Consumer Financial Protection Bureau) which was set up with one person at the helm not subject to removal by the President. Where does Congress come up with this stuff?
The Supreme Court won’t be persuaded to elevate the status of patent rights any time soon, so the PTAB mess cries out for a legislative fix. Representative Thomas Massie, Republican of Kentucky, has introduced a bill to repeal PTAB. Massie and Jenny Beth Martin discussed the bill and other legislative fixes in a joint editorial in July 2018.
I highly recommend Tea Party Patriots’ documentary. It’s obvious something needs to be done about PTAB. Our prosperity and economic freedom depend on it.
14A Presumption of Innocence – Albuquerque’s civil asset forfeiture program declared unconstitutional; gov’t attorneys caught on tape calling it a “gold mine”
2A: NRA sues NY Governor for denying First Amendment speech rights (Query: does urging banks not to deal w/NRA burden fundamental rights? ‘Burden’ argument often made in abortion cases.)
5A,9A: Supreme Court greenlights climate change case, but warns not to let it get out of hand. Constitutional right to a “sustainable environment”? Sure.
14A Due Process: federal appeals court OKs challenge to California’s felony murder statute; “inherently dangerous felony” unconstitutionally vague? (argument helped by Gorsuch opinion in 2018 immigration case)
1A Religion: motion to dismiss in Detroit female genital mutilation case to be heard next month.
1A: left-wing professors’ association starts resistance group to attack state laws guaranteeing free speech on campus
1A: Liberty High School in Oregon gives up fight against student it barred from wearing Trump t-shirt; pays $25,000 and apologizes
Dems circulating authoritarian proposals to regulate the Internet under the guise of fighting Russian interference.
Shame! Sen. Chris Murphy (D-CT) calls for social media to ban all sites ‘spreading hate and lies’ because ‘survival of democracy’ depends on it. No, our Republic depends on the survival of free speech.
SPLC amps up war on free speech, condemns Constitution and free speech that inspires people, for example, to shoot up the Family Research Council and attempt to kill Congresmen on a baseball field. Oops! #SweepYourOwnDoorstep
1A Free Press: courts generally uphold videotaping of police officers in public, but what about haranguing a mail carrier?
1A Free Press: New Jersey to spend millions to prop up small struggling newspapers; bad move. #ShadesOfPravda
1A: 28 states ask Supreme Court to uphold 40-foot cross honoring World War I vets (would they feel the same way if it were a 40-foot star-and-crescent?)
2A: “Building a Church Safety/Security Team: Keeping Your People Safe and Secure in 2018” WATCH BELOW
4A: Michigan Supreme Court orders trial court to determine whether practice of photographing and fingerprinting people ‘as needed’ without probable cause violates the Fourth Amendment.
Eminent Domain: Government pushes ahead with plans to change constitution to allow seizure of land from white people without compensation. Then I realized I was trapped in one of Justice Ginsberg’s dreams.
9A: This might be the first rally for the Ninth Amendment in history, but El Paso demonstrators are sadly mistaken in thinking it guarantees their “right to be happy”
10A: why is it the party out of power always discovers the virtues of federalism? California agitating for its right to impose stricter auto emission standards than the feds (thereby dictating what the rest of the country will drive?)
13A: whether banning hate crimes is a good idea or not, the Thirteenth Amendment doesn’t get you there, brief argues. 13A confers no power to uproot ‘incidents’ of slavery.
14A Equal Protection: article argues against Obama-era claim that 1965 regs give Department of Education all-purpose authority to go after all school actions having disparate impact on minorities
14A: U.S. court orders New Orleans to give criminal defendants a ‘neutral forum’ to prove they can’t pay fines or fees before throwing them in jail for unpaid amounts
14A Due Process: U.S. appeals court declares Louisiana statute banning the threatening of public employees with lawsuits or complaints unconstitutionally overbroad
Article II: lawsuit alleges Trump’s actions on Obamacare amount to a failure to faithfully execute the laws
Chevron Deference: Supreme Court is asked to take case to rein in judicial deference granted to agencies to interpret statutes; FCC changed its mind 3 times as to what a federal law means
Patent Trial and Appeal Board (PTAB) seen as enabling big companies to steal the work of inventors; one problem is looser rules than in court; abolition and reforms proposed
WATCH BELOW - Short video explains the problems with federal trial courts issuing nationwide injunctions that go way beyond the parties to a case; dueling injunctions one such problem
U.S. appeals court agrees with blocking Trump from cutting sanctuary city funding in California, but knocks down nationwide injunction
State Constitution / Economic Freedom: doctor sues to overturn North Carolina’s Certificate of Need law as unconstitutional monopoly interfering with his ability to offer MRIs for less
Rule of Law: “Anarchy Breaks Out in Portland, With the Mayor’s Blessing - A vicious mob targeted the ICE office and even a food cart. The police followed orders to do nothing.”
14A Equal Protection: Portland mayor denies he violated Constitution when city failed to respond to 911 calls from ICE agents during protest
Federal government did not assert control over immigration policy until the late 19th Century, and proceeded on thin constitutional authority
“Former Prosecutor KrisAnne Hall Warns of Constitutional Ignorance”
NY reverses course, restores U.S. flagpoles to highways after veterans complain
In May, Illinois became the 37th state to ratify the Equal Rights Amendment. Yes, the Equal Rights Amendment, which Congress sent to the states for ratification in 1972, is still alive and kickin’. The ERA’s supporters maintain that only one more state is needed to fulfill the Article V requirement for ratification by three-fourths of the several States, but that’s far from clear.
The ERA has split the feminist movement. Some believe that the Constitution does not currently adequately protect women’s rights. Other feminists oppose the ERA, preferring to keep preferential treatment for women in such things as, alimony, affirmative action preferences for women, set-asides for women-owned businesses in government contracting, and Social Security widow’s benefits. Women’s groups even opposed a ‘mini-ERA’ for these reasons in California in the 1990s. This camp also does not want to see women become subject to the military draft. It should be noted that an Equal Rights Amendment was first proposed in 1921 and was opposed by the early Progressives and Eleanor Roosevelt because it would negate special protections for women in labor law regarding working conditions and hours.
Opponents of the ERA, meanwhile, argue that the Constitution already adequately protects women’s rights, citing the 14th Amendment equal protection clause and the fact that such constitutional rights as habeas corpus make no distinction between men and women in their application. Opponents also worry that the ERA, if adopted, could render every pro-life law on the books unconstitutional including parental consent for teen abortion and the Hyde Amendment which prohibits federal funding of abortion.
It’s not clear that ratification by a 38th state would put the ERA over the top, for several reasons. First, Congress set a deadline for the states to ratify the ERA and not enough states voted it up in the time allotted. Congress even extended the deadline and the ERA still fell short of the number of states required. Some argue that the failure to get enough states in the time periods prescribed is a fatal defect. In a 1921 case [Dillon v. Gloss], the Supreme Court upheld the constitutionality of a congressional time limit for ratification of a pending constitutional amendment. [Chemerinsky, Constitutional Law – Principles and Policies, 4th Ed. 2011, at p. 148]. The counter-argument is the fact that the 27th Amendment dealing with Congressional pay raises was first proposed in 1789 but not ratified until 1992.
Second, five states have voted to rescind their earlier ratifications of the ERA and it is disputed as to whether not these disavowals have any legal effect. The legality of the Congress’ extension of time and the ability of states to rescind went to the Supreme Court in a 1982 case [National Organization of Women v. Idaho], but the Court dismissed it as moot because the deadline had expired.
Third, there remains the issue that was litigated in the 1982 case where the lower court had found that Congress’ extension of time was unconstitutional because it was passed by majority vote, not two-thirds of both houses. [Chemerinsky, p. 149].
Things could get very messy if a 38th state ratifies the ERA. This could easily happen. The measure is actively being pushed in Florida, Virginia, North Carolina, and Arizona. If a 38th state ratifies, Congress would still have to declare the ERA part of the Constitution, but Congress could balk on the grounds that its two deadlines have already passed. If a court rules that states are not able to rescind their ratifications, other dormant proposed Constitutional amendments would come to life, including proposals having to do with D.C. voting rights, child labor, and titles of nobility.
One or more of these questions could end up in the Supreme Court which has dodged such questions half the time throughout our history by invoking the political questions doctrine which holds that such questions should be resolved by the political branches of government, not the courts. [See also Chemerinsky at p. 148]
The situation has the potential for high drama, so stay tuned. It may sound bad, but the country has been through worse. The 14th Amendment was deemed adopted even though it would have failed without counting the votes of the Southern states that were coerced into ratifying it on pain of being denied readmission to the Union and also the votes of two states that had rescinded their approval [id.] I guess nothing’s perfect in this world, not even the Rule of Law.
San Jose officials fail to knock out suit involving hundreds of Trump supporters (Constitution news round-up)
1A,11A: San Jose officials fail to knock out suit involving hundreds of Trump supporters beaten by mob after city issued police stand-down order
1A,2A: federal judge temporarily blocks posting of 3D gun blueprints on the Internet
Separation of Powers: Trump admin suffers defeats in Chicago and California sanctuary cities cases; executive conditions on appropriated grant money unconstitutional
Emoluments: federal judge rules against Trump in Emoluments Clauses case; foreign officials paying to stay at Trump hotel is unconstitutional under court’s theory
State Constitution: referendum to split up California removed from November ballot; partition can’t be done by mere statute
1A: Sessions says DOJ ‘not slowing down’ in pursuit of religious liberty, cites protection of mosques
1A: Trump Justice Department continues to advocate for free speech on campus
1A: San Antonio firefighters sue city over free speech zones which, they say, frustrate their right to gather signatures for petition
1A: National Abortion Federation drops some claims in tactical move to speed up permanent gag order against baby parts videographer David Daleiden
1A: abortion protesters defeat NY Attorney General’s attempt to silence them; judge finds state witnesses exaggerated claims, destroyed evidence, set up fake Facebook account to spy on defendants
Free Speech: “'Trigger warnings' may undermine 'emotional resilience,' Harvard study finds”
1A: Oberlin College tried to obtain conservative website’s communications with journalistic sources in defamation case
1A: U.S. appeals court rules against Christmas ads on city buses; declining all ads on particular subject matter does not suppress any one viewpoint; appeal to Supreme Court likely.
2A: U.S. court rules Hawaii may not limit open carry licenses to persons who are security guards
2A: almost 500 (so far) forced to surrender firearms under Florida’s gun confiscation program adopted after Parkland shooting. #HardFactsMakeBadLaw
14A: federal appellate court ruling on Alabama minimum wage law shows danger of inferring discriminatory impact and intent on sliver of evidence and declaring ‘once a sinner, always a sinner’
14A: Further incidents fuel emerging issue of political bias in public accommodations (black conservatives were denied Uber service; government-run county fair in UK kicks out pro-life group)
14A: Reagan official criticizes op-ed against birthright citizenship, arguing it misinterprets “under the jurisdiction thereof”. Editorialist responds
Nation celebrates 150th anniversary of 14th Amendment, but some act like it’s still 1861
Shame! Ruth Bader Ginsburg film says word ‘freedom’ not in the Constitution, but “freedom of speech” right there in the First Amendment.
Shame! Maxine Waters supporters use First Amendment rights to stomp, burn U.S. flag, trash America. (and you’re going to replace the First Amendment with ... what, exactly?)
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