The Tea Party movement started from a belief that Washington is out of control. This belief led Tea Party after Tea Party to adopt the core value of limited government under the Constitution. But there is a type of local and state agency that is also out of control, and offends our core values, as well.
I’m talking about local and state human rights commissions. Critics say they are runaway trains, run by left-wing political hacks, untrained, who think nothing of trampling on the separation of powers, free speech, and due process rights. Masterpiece cake baker Jack Phillips was the victim of the Colorado Civil Rights Commission. Some of the commissioners stated their view that there is no room for religion in the public sphere and, further that Phillips’ faith was “despicable”. They compared his widely-held religious views to defending slavery or the Holocaust. The Supreme Court struck down their enforcement action against Phillips because they were openly hostile to religion.
Phillips is not the only victim. Earlier this month, the Pennsylvania human rights commission took upon itself the power to puff up a state statute forbidding discrimination on the basis of ‘sex’ to include ‘sexual orientation’ and ‘transgender’ claims. Also this month, the Connecticut human rights commission ordered all employers in the state not to discriminate against job applicants with dishonorable discharges from the military. I don’t know about you, but these sure sound like questions for the state legislature to me.
A recent panel presentation reviewed a number of other cases from around the country. In Fort Worth, the commission has the power to investigate and issue determinations. In New York City, the commission can levy fines and file criminal proceedings. In Orange County, California, the commission was prepared to condemn a university instructor for hate speech without ever watching the videotape of the event in question. In Anchorage, Alaska, the head of the commission swore out a complaint against an attorney who was representing someone before the commission for remarks the attorney had made to the media.
In Oregon, the staffers bringing the claims and the administrative law judge – who is not a lawyer - work for the same agency, breaching separation of powers. Procedural safeguards are limited – discovery is minimal and the rules of evidence don’t apply – you can be done in by hearsay. In one case, the commissioner had made prejudicial statements to the media, but a motion to disqualify him for bias was rejected. In another instance, the defendants had a gag order placed on them – they could not defend themselves or discuss their beliefs in the media while the case was pending.
This is just a sampling of what has been going on with these commissions. So what can be done about it?
Republicans in Colorado introduced legislation to change the way human rights commissioners are appointed, beef up the oversight they receive, and allow parties to skip the commission altogether and go right to court. They later agreed with Democrats just to increase the size of the commission and subject it to a legislative audit. I don’t know where things stand in Colorado at the moment, but now would be a good time for activists to agitate for stopping unelected runaway commissions in other states that are misusing 14th Amendment Equal Protection to engage in social engineering and impose their left-wing political agendas on the rest of us.
2A: Expert John Lott demolishes study claiming ‘U.S. has the most mass shootings’; U.S. ranks 58th; study author hiding data and won’t debate Lott
1A: Federal judge voids California’s 1923 ban on handgun advertising as violating free speech
1A: student sues Wisconsin community college for preventing her from handing out religious-themed Valentine’s Day cards
1A: Rochester gives up on trying to enforce injunction relating to abortion clinic free speech buffer zone against a non-party
Free expression: ‘report your friends and neighbors to the police for making insulting comments’. Soviet Union long ago and far away? Nope. UK today.
2A: California to ratchet up ammunition controls next year; already, residents must buy their ammo in-state from state-approved vendors.
2A: California bill (AB2888) expanding list of people who can ask for gun violence restraining orders advances to Governor’s desk
2A: left-wing group funding public radio advocacy ‘journalism’ aimed at refining how to get gun control measures passed. #ExposeTheirMethods
5A: terror suspect claims Trump tweets calling for death penalty makes a fair prosecutorial decision impossible
8A: 9th Circuit rules prosecuting the homeless for sleeping outside is cruel and unusual punishment
Sovereign immunity: Supreme Court to hear issue of whether a state can be forced into another state’s courts
AG Jeff Sessions speaks against nationwide injunctions which used to be rare, but have hampered Trump 25 times in 2 years
Editorial: 9th Circuit intellectually dishonest in donor disclosure case; ignored record evidence of lack of necessity, state’s failure to safeguard names, and threats against AFP Foundation donors
Shame on John Brennan for calling on Deep State resisters to disobey Presidential order to declassify documents. This would overturn the Constitutional order. None dare call it treason.
“You have the right to remain silent. Anything you say can and will be used against you in a court of law.” Anyone who watches TV in America can recite these words in their sleep. But what they actually mean in practice can surprise you.
Take the highly publicized case of Brendan Dassey who was convicted of murder and other offenses based on a confession he made when he was 16. His story was made into a miniseries on Netflix. His lawyers argued that Brendan is intellectually challenged and susceptible to suggestion. Brendan has a low IQ and tests in the 7th percentile. They say detectives spoon-fed him answers that were incriminating and consistent with the evidence, which Brendan then adopted. No lawyer or parent was present. The session was recorded and one report said he appeared to be unaware of the gravity of his situation. A judge would later write, “What occurred here was the interrogation of an intellectually impaired juvenile.... Dassey was subjected to myriad psychologically coercive techniques....” One of those techniques was detectives repeatedly saying they already knew what had happened. This judge called Dassey’s conviction “a profound miscarriage of justice.”
Was this a voluntary and truthful confession, or was it coerced? The Supreme Court acted on the case earlier this year, but before turning to that, let’s first look at the Constitution and the history of the right against self-incrimination.
The Fifth Amendment states that no person “shall be compelled in any criminal case to be a witness against himself....” The right against self-incrimination applies in state criminal cases through what is called the incorporation doctrine. [Chemerinsky, Constitutional Law (4th ed.), p. 516]
The history of compulsory self-incrimination goes back at least as far as the Spanish Inquisition. It was used in England for 400 years after the Magna Carta. [The Making of America, pp. 705-06] The English Star Chamber used torture to obtain confessions. In 16th and 17th century England, anyone refusing to swear their innocence was considered guilty. Suspected Puritans were pressured to take the oath and reveal the names of other Puritans. The Puritans began to resist the interrogations and brought the idea of a right against self-incrimination with them when they fled to the New World, where the right ended up in our Constitution.
Back to Brendan Dassey and the question of whether his confession was voluntary, a panel of the 7th Circuit Court of Appeals overturned his conviction in June of 2017, but the full court reinstated it in December of that year. The Supreme Court turned down the case in June of this year, declining to hear it.
In arguing for that result, the state of Wisconsin asserted that the confession was voluntary and properly obtained. The detectives were sympathetic and encouraged Dassey to be truthful. Another judge along the way wrote:
Dassey was convicted of first-degree intentional homicide, second-degree sexual assault and mutilation of a corpse. He was sentenced to life in prison and won’t be eligible for parole until 2048. He still has supporters, though, who hope to spring him before then.
One final note: Tomorrow is Constitution Day. Celebrate the fact we have a Constitution that prevents tyranny and protects our rights, like our right against self-incrimination. Sure, there are tough cases where it’s hard to decide whether a confession is voluntary or coerced but, still, having the right sure beats being tortured in the Star Chamber, doesn’t it?
9th Circuit orders disclosure of AFP (Koch Brothers) donors to state of California (Constitution news round-up)
1A: 9th Circuit orders disclosure of AFP (Koch Brothers) donors to state of California; says donors won’t be deterred from donating or face harassment
1A: Trump’s exhortation "get 'em out of here" during 2016 campaign rally did not incite to riot, 6th Circuit rules
1A: cheerleaders prevail against school district which attempted to ban Bible verses on banners at football games
Justice Department to meet with state AGs to discuss whether social media companies are “intentionally stifling” free speech
100+ Facebook employees form group to promote space for ideological diversity within their ‘intolerantly liberal’ company
1A: Ben Shapiro and conservative student group sue UMinn for viewpoint-based discrimination in refusing to offer speech venue on main campus
Executive Overreach: federal judge refuses to kill DACA at preliminary injunction stage, but makes clear he thinks it’s unconstitutional
2A: 3D gun blueprints for sale on flash drives after judge blocks free release online
14A Affirmative Action – Justice Department joins suit against Harvard for suppressing Asian-American applicants
14A: feds reopen case against Rutgers for creating a hostile environment for Jewish students
14A: Local and state rights commissions are runaway trains, untrained left-wing political hacks trampling separation of powers, free speech, and due process; have power to entrap, fine, investigate and gag (podcast)
14A: Pennsylvania Human Relations Commission arrogates to itself the power to puff up ‘sex’ to include ‘gender’ to broaden reach of statute to cover sexual orientation and transgender discrimination claims
14A: federal appeals court tosses lower court’s injunction against Michigan law eliminating straight-ticket voting, finds no evidence law (which many states have) was racially motivated
14A Fundamental Rights: U.S. judge strikes down Texas law requiring dignified burial of abortion remains – ‘unduly burdens abortion right’ (Casey analysis)
1A Religion: Masterpiece baker seeks to expand Supreme Court ruling beyond hostility to religion by certain officials to hostility by government in general
4A: Texas Medical Board engaging in warrantless searches of doctor’s offices in ‘back-door gun control’ effort
Eminent Domain: South African constitution does not limit “property” to land; changing it would authorize confiscation of homes, trademarks, pension funds, etc. without compensation
8A: Oregon attorneys argue sentencing juveniles for murder to 30 years with possibility of parole after that amounts to unconstitutional life sentence for juveniles
9A: Kavanaugh rejects ‘fountain of rights’ theory of 9aA; would limit declaration of unenumerated rights to those ‘rooted in history and tradition’
Political bias in Public Accommodations: Houston Starbucks boots customers for wearing ex-Muslim t-shirts
Chevron: deference is a many-splendored thing and will remain covertly even if Chevron is overturned; courts will defer to agency findings of fact, etc.
A socialist command economy is incompatible with limited government having only specified powers under the Constitution
Shame! Beto O’Rourke campaign asks VFW to take down U.S. flags for campaign appearance; VFW Commander says “hell, no.... I can’t believe any American would ask us to do that”
Penn State campuses to celebrate Constitution Day with extensive activities including posters, free pocket Constitutions, bus trip to Flight 93 Memorial
A speech he gave last year gives a pretty good indication of the judicial philosophy of Brett Kavanaugh, the man likely to be the next Supreme Court justice.
Kavanaugh led off his speech with this: “The Framers believed that in order to protect individual liberty, power should not be concentrated in one person or one institution.” Bingo! That is the key point – preventing the concentration of too much power in too few hands. That he led off with this point is encouraging. He elaborated by showing a healthy respect for the separation of powers and federalism.
Then he took up the all-important question of who should be in charge of changing the Constitution. Kavanaugh said he believes “that changes to the Constitution and laws are to be made by the people through the amendment process and, where appropriate, through the legislative process—not by the courts snatching that constitutional or legislative authority for themselves.” In other words, no living and breathing Constitution made up by the courts. Instead, Kavanaugh said, the Constitution lives and breathes every time the amendment process is used and our elected representatives play their part.
More clues come from his discussion of former Chief Justice William Rehnquist, whom Kavanaugh calls his “judicial hero”. Kavanaugh spoke favorably of how Rehnquist retrenched from the rulings of the activist Warren court of the 1960s. Rehnquist opinions carved out exceptions to the exclusionary rule that keeps evidence out of criminal trials. Rehnquist also found exceptions to Miranda rights which keep prosecutors from using statements of criminal defendants made before they are advised of their right to remain silent and to an attorney. Rehnquist criticized the notion of separation of church and state, and wrote opinions much friendlier to religion than his predecessors did. Rehnquist also wrote opinions that ‘put the brakes’ on the power of the federal government under the Commerce Clause, starting with the first principle that the Constitution limits the federal government to a few defined enumerated powers. Rehnquist also shied away from the Supreme Court declaring willy-nilly new fundamental rights under the Due Process Clause. Rehnquist refused to find an unenumerated federal right to assisted suicide because it was not “deeply rooted in the nation’s history and tradition.” In other words, the Supreme Court should not be engaged in social engineering. Rehnquist tried to rein in federal agencies, writing in dissent that delegating agencies too much power to decide important policy questions is unconstitutional and that the big stuff should be up to Congress, not the agencies.
If you’re looking for more clues as to how Judge Kavanaugh will rule, he gave a second speech last year outlining the difficulties with viewing judges as mere umpires who should just call balls and strikes. Statutes are ambiguous and constitutional rights have exceptions. There’s no objective way to come up with the right answer in cases involving each. Judges can’t help but bring their subjective policy preferences to the interpretation of both. At the end of the speech, Kavanaugh says he doesn’t have all the answers.
He may not have all the answers but still, after reading both speeches, I have a hard time seeing Brett Kavanaugh evolve over time into something unrecognizable, as has happened on the Supreme Court before. Mark Levin wrote in Men in Black about the leftward drift of Justices Harry Blackmun and Anthony Kennedy. For the moment, at least, it looks like Brett Kavanaugh will uphold the Tea Party core value of limited government under the Constitution while on the Supreme Court, which puts us in a whole lot better place than if it had been a President Hillary Clinton getting to make this nomination.