Grit Your Teeth: Political Robocalls Protected by the First Amendment (Constitution news round-up)
1A: 9th Circuit panel knocks down Montana ban on political robocalls - ‘restrictions on political messages do not survive strict scrutiny’
Pro-Second Amendment film ‘The Reliant’ to screen one day in theaters Oct 24th - highlights the folly of gun control which leaves criminals the only ones who are armed
Emoluments: Third emoluments case against Trump reinstated (Second Circuit)
1A: businesses have free speech rights and can’t be forced to make wedding invitations for same-sex couples (Arizona Supreme Court)
Presidential Qualifications: federal judge temporarily blocks California law requiring Trump to cough up tax returns before getting on primary ballot
Preemption: 23 states sue Trump administration for revoking state power to set auto emission standards
1A: 6th Circuit strikes down Tennessee statute requiring permission to put messages on billboards as invalid content-based regulation
1A: "Keep pushing me and it won't end well." "I've given plenty of warnings." "I swear to Allah and everything I hold dear that I will resort to murder in the next 30 days." 7th Circuit: not protected by the First Amendment
Free Expression: Facebook admits it is a “publisher” in court filing; major ramifications for legal fights ahead (platforms cannot be held liable for what their users say, but publishers can)
Free Expression: Tony Blair think tank thought police want government to go after hate groups, ban them from media and from speaking at universities
2A,6A: defendant may choose jury trial when state criminal conviction can lead to denial of gun rights under state law (Nevada Supreme Court)
2A: Dems vote down amendment applying red flag bill to gang members. Lawful citizens yes, gang members, no. And they get upset when we call them gun-grabbers.
Electoral College: National Popular Vote referendum to be on Colorado ballot next year
Due Process: European doctor sues FDA for the right to prescribe abortion pills to U.S. women over the Internet
Separation of Powers: CFPB agrees in Supreme Court brief its structure is unconstitutional (the prohibition on removal of the CFPB's Director absent cause is invalid); Court could grant certiorari and appoint devil’s advocate
5th Circuit rules FHFA structure unconstitutional - another agency with a single director who cannot be fired absent cause
C-SPAN airs Justice Neil Gorsuch talking about his book “A Republic, If You Can Keep It”
Shame! on Portland women’s soccer fans who booed armed forces swearing in ceremony
Kudos! to Winthrop University in South Carolina for instituting a required 3-credit hour Constitution Competency course
I’m very much looking forward to being with you at Tea Party Patriots’ ‘Stop Socialism - Choose Freedom’ rally on Thursday.
I went back through the Constitution Minutes to see what I had written about socialism on prior occasions. This is what I found:
People who have considered the question have cited various provisions in arguing that socialism is incompatible with the Constitution. For example, Article 4, Section 4 of the Constitution says the United States shall guarantee to every state a republican form of government, not a dictatorship. Article 1, Section 8 sets up limited government and says Congress only has certain enumerated powers. Under the 5th Amendment, no one can be deprived of property without due process of law. If the government takes property, it’s supposed to provide just compensation. This would seem to prevent the wholesale nationalization of industries under socialism.
Moreover, early Supreme Court jurisprudence strictly enforced property and contract rights on natural law grounds. [Chemerinsky, Constitutional Law, 4th Ed., p. 622 – citing, e.g., Fletcher v. Peck from 1810] The rationale changed to the due process clause in the Lochner era, but the Court continued to strike down state laws that regulated private business.
But Justice Oliver Wendell Holmes wrote a famous dissent in the Lochner case declaring that the “constitution is not intended to embody a particular economic theory, whether of paternalism … or of laissez faire.”
Then the New Deal changed everything. The Supreme Court began upholding federal statutes regulating business. The last time the Supreme Court struck down a regulation on constitutional due process grounds was 1937. [Chemerinsky, p. 641]
If socialism means equalizing incomes, we have a progressive income tax no one has successfully challenged on constitutional grounds. What principle stops progressive taxation until it completely levels everyone’s income? I can’t think of one.
If socialism means government ownership of the means of production, we’re already half way there in terms of a constitutional stamp of approval. The Chrysler bondholders were wiped out after the financial crisis of 2008. Thanks to Obama, their money went to UAW retirees who were unsecured creditors. And it was all considered perfectly legal. AIG shareholders are still in court trying to get back what they believe was wrongfully taken from them in the financial crisis.
And I haven’t even mentioned the amendment process yet. FDR proposed a Second Bill of Rights guaranteeing everyone a job, a home, and healthcare, among other things. The Second Bill of Rights would even guarantee a right to adequate recreation. You can’t have Utopia without adequate recreation, right?
We have a Supreme Court that turns night into day and makes up rights out of whole cloth. Why not a right to an equal income? If Obamacare is a tax and, at the same time, not a tax, anything is possible at the Supreme Court.
The delegates [to the 1787 Constitutional Convention] did not put any particular economic system into the Constitution, or rule any out. If you want to preserve limited government and free markets, don’t count on the Constitution to keep socialism at bay. Roll up your sleeves and get to work.
I wrote that in 2017. Now, just for a little teaser about what I have coming up for you: I’m reading the proposed constitution of the Revolutionary Communist Party of the United States. It’s almost a hundred pages long, whereas the entire U.S. Constitution can be read in little over an hour. These Leftists are nothing if not wordy. But there are some real doozies in Revcom’s proposed constitution I’ll be telling you about in coming weeks, starting with one-party rule. Yep, they wrote themselves into their own constitution all over the place as being in charge of, among other things, political nominations and the military. No other political party - or even the possibility of another party - is mentioned.
So, three cheers for the U.S. Constitution and its enshrinement of limited government which allows political parties of all stripes to exist - even ones like Revcom that want to destroy the country as we know and love it.
Stop Socialism - Choose Freedom!
Shame on FEC Chair Weintraub for Trashing the Electoral College (pushback from the Champions of the Constitution Grassroots Network)
RBG: good luck amending the Constitution to get rid of the Electoral College
5A Due Process: federal judge declares terrorist watch list unconstitutional and asks the parties for briefs on what remedy to impose.
5A Due Process: Supreme Court lifts nationwide injunction against Trump safe third country asylum rule while litigation continues
Attorney General William Barr rails against nationwide injunctions in op-ed, calls for Supreme Court to reexamine their use
Justice Gorsuch’s New Book: A Republic, If You Can Keep It
2A: NRA sues San Francisco over ‘domestic terrorist’ designation
1A Religion: Residents sue San Antonio for excluding Chick-fil-A from the airport
1A Compelled Speech: public university can compel government employee professor to use transgenders’ preferred pronouns.
5A Privacy: Virginia is for Lovers who don’t want to identify their race on marriage licenses, suit alleges
“Maine set to become first state to allow ranked voting in presidential election” - practice denies victory to candidate who gets the most votes, but previously held constitutional
Separation of Powers: a judge is not a prosecutor and cannot decide to prosecute people when the D.A. refuses (Massachusetts Supreme Court)
1A: “Corporations and the First Amendment: Free Speech Rules” (#6 in Volokh video series)
1A: You don’t have a constitutional right to shout down a speaker (federal court in Colorado)
Free Expression: Christian woman freed after spending 10 years on Pakistan’s death row for ‘Islamic blasphemy’ exhorts ‘stay true to your beliefs’
2A: “Leftists Said Maine's Permitless Carry Law Would Cause Chaos. Now It's the Safest State in US”
2A: gun confiscation would be met with mass resistance, jury nullification, and violent clashes
4A: “Doorbell-camera firm Ring has partnered with 400 police forces, extending surveillance concerns”
Equal Protection: children born outside the U.S. to unmarried noncitizens become citizens if the mother, but not the father, becomes a citizen. Third Circuit: violates equal protection
Claiming discrimination on the basis of Jewish ‘race’ or ‘heritage’ is a ticklish question, echoing back to the Nazis who discriminated against the Jewish ‘race’
The impulse toward tyranny of the majority is back. That’s why we have a constitutional Republic and that counter-majoritarian thing called the Bill of Rights
Shame! on Arizona HOA for telling vet’s widow to paint over American flag on curb because ‘it doesn’t fit the neighborhood look’
Kudos! to the blind autistic Georgia boy who painted an American flag and sent it to the White House (President Trump sent back a nice reply)
The title of Justice Neil Gorsuch’s new book, due out Tuesday September 10th, will be familiar to every Tea Partier: A Republic, If You Can Keep It.
The book is a collection of essays, speeches, past opinions, and thoughts on the separation of powers, civil liberties, and the role of judges under the Constitution. Gorsuch believes originalism and textualism are the best guides to interpreting the Constitution and protecting our freedoms.
Justice Gorsuch is “everything conservatives hoped for and liberals feared,” the liberal dean of the UCal Berkeley law school, Erwin Chemerinsky, told the Washington Post. While on the Supreme Court, Gorsuch voted to uphold the travel ban on certain Muslim and other countries, to add a citizenship question to the census, and to allow a ban on transgenders in the military to go into effect. But he is a maverick, sometimes siding with the liberals, for example, in a case overturning a precedent allowing local and federal prosecutions for the same offense. Gorsuch is not afraid to revisit the Court’s earlier jurisprudence. In his two terms on the Court, he has voted to overturn, or suggested taking a fresh look at, established precedent 11 times.
But the most interesting aspect of the book to me is the connection he draws between civic education and mutual respect in political discourse on the one hand, and self-governance and popular sovereignty on the other. He is distressed that people don’t understand the basics of the separation of powers. “Only about a third of Americans can identify the three branches,” Gorsuch told the Washington Post. “Another third can only name one branch of government.” Ten percent thinks Judge Judy serves on the Supreme Court, he went on to say.
Gorsuch is worth reading because he discusses the duty of every American to help maintain the Republic. It is not a given we will always have a Republic. It takes work to maintain one. It’s either that or go back to having a tiny elite rule over us because we are too lazy to govern ourselves.
Gorsuch is also worth reading because he is young - he just turned 52 - and prolific: he writes more pages of opinions than any other Justice currently sitting on the Court. This is somebody who is going make his mark on constitutional jurisprudence well into the next generation. He will influence the direction of the Court and the country on important issues of public policy for decades to come.
Republicans Rebuke Democrat Senators for Threatening the Supreme Court (Constitution news round-up)
Separation of Powers: All 53 Republican senators rebuke 5 Democrat senators for threatening the Supreme Court and assaulting judicial independence in gun case
1A Press: The government deciding what is fake news? FEC chairwoman and Defense Department moving in this direction. This is trouble.
Discrimination: Supreme Court is asked to take 3 cases presenting question of whether ‘sex’ in the Civil Rights Act includes sexual orientation and gender identity; do agencies really have that power or should it be left to Congress to decide?
1A: unions fighting Janus mandatory dues decision at the state level; 100 bills to skirt Supreme Court ruling introduced
1A Religion: Peace cross case to figure prominently in suit against New Hampshire VA hospital for Bible display
2A: 4th Circuit rules Charleston church shooting victims can sue U.S. over lapses in vetting gun purchasers
1A Free Press: court restores press pass of punk reporter who swore at President Trump in the Rose Garden
1A Religion: 3rd Circuit rules Pennsylvania House need not give nontheists opportunity to offer the invocation
4A: 11th Circuit becomes 11th court of appeals to uphold nationwide remote-access computer search in child pornography cases; this warrant exceeded magistrate’s authority but officers relied on it in good faith
4A: 1st Circuit upholds search of package believed to contain methamphetamine even though warrant application mistakenly included wrong attachment describing a different package
Discrimination: a church cannot take control of an entire town and discriminate against nonmembers or use the town’s resources to advance the church’s interests (the infamous Warren Jeffs again)
1A: proposed Alaska Bar Association rule to combat discrimination by lawyers threatens free speech and religious liberty
2A: 7th Circuit again upholds Chicago’s ban on assault weapons and high-capacity magazines
5A Self-Incrimination: panel discusses compelled decryption of smartphones
14A Due Process: a criminal court that depends on fines for a substantial portion of its budget is acting unconstitutionally in not providing a neutral forum
Electoral College: opponents of the National Popular Vote Compact in Colorado gathered enough signatures to place a referendum on the 2020 ballot to repeal enabling state legislation
Federal prosecutor in Ohio files anti-Semitism charges, warns white nationalists they don’t have a constitutional right to have people listen to their garbage, but others do have the right to live and worship in peace
Shame! on the woman who destroyed several U.S. flags in Virginia neighborhoods
Kudos! To Nexstar television for starting the broadcast day on its 171 stations with the National Anthem
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