Trump administration asks Supreme Court to strike California sanctuary law (Constitution news round-up)
Defending the Constitution - build a fortress around the American Idea! (new video from Potomac Tea Party)
Killing the Political Right - CCGN Pushes Back on “Free Speech is Killing Us” Article
Supremacy Clause: Trump administration asks Supreme Court to strike California law barring cooperation with federal immigration officials
4A: FISA court rules FBI accessed NSA data to systematically spy on Americans without any suspicion of illegal activity
14A Fundamental Rights: federal judge temporarily blocks near-total Alabama abortion ban
8A: state judge strikes down South Carolina civil asset forfeiture law
5A,8A,Taxing Power: CRS report flags constitutional problems with Pelosi drug pricing plan
1A: Why the golden age of free speech jurisprudence may not last: “51 percent of Millennials want fines or jail time for 'hate speech'”
1A: judge greenlights Rep. Devin Nunes suit against Twitter
Free Expression: EU court decision purports to ban social media criticism of European politicians worldwide
1A Religion: Supreme Court turns away appeal by Christian student forced to say Islamic prayer in government school
1A Religion: University of Iowa officials must pay attorney’s fees out of their own pockets after kicking religious groups off campus for not having leaders from another faith
2A: ICYMI - “Venezuelans regret gun ban, 'a declaration of war against an unarmed population'”
2A: ACLU calls new California gun control laws a significant threat to civil liberties
4A: federal judge in Tennessee rules surveillance cameras placed in open fields are allowed without a warrant because there is no expectation of privacy (4A property rights rationale not discussed)
6A: you have the right to defend yourself at trial but, if you do a really bad job, don’t complain about it later (6th Circuit)
Habeas Corpus: reference to “Thou shalt not kill” commandment tainted jury verdict in sentencing phase of death penalty case
Administrative State: critics wrangling over means agency use when real problem is agencies are now unconstrained when it comes to pursuing unlegislated ends (Richard Epstein)
Administrative State: Trump orders curtail agency use of guidance documents (no more ‘secret law’)
Freedom of the Press - today’s media is a threat to the country, but “the First Amendment was meant to protect speech, not industries.”
“Clarence Thomas and the Lost Constitution”
“‘Social justice’ degrades our constitutional rights” - property rights, presumption of innocence, etc. are in jeopardy
Shame! NBA star LeBron James denounces free speech in China controversy
Kudos! Former NBA star Shaquille O'Neal stands up for free speech
Sales of U.S. Constitution up 60% in Trump era
Why We Have Free Speech
Why do we have free speech in this country? Lots of reasons, actually, but tonight I’ll talk about two related reasons that seem to me to get to the heart of the matter.
In Constitutional Law class in college, I was assigned a book called Free Speech and Its Relation to Self-Government, published in 1948 by Alexander Meiklejohn. It is arguably the most influential book on free speech ever written. All I remembered from the book was the author’s position that political speech is the most important type of speech and deserves the most protection.
Recently, I went back and took another look. I had completely forgotten the self-government part. It didn’t stick because I hadn’t been taught about self-government anywhere in my schooling. The bottom was already dropping out of education when I went through grade school in the 1960s. Fast forward 40 years to 2009. I became a Tea Partier and learned about popular sovereignty for the first time.
And this is why we have free speech. Free speech is necessary for self-government - popular sovereignty. We the People rule ourselves. We don’t have a king or a tiny elite ruling over us. Therefore, we must have all the information we need in order to make our sovereign decisions. As James Madison put it:
It takes a long time to cultivate a culture of free expression. It doesn’t come naturally to a lot of people, so it requires maintenance to keep a culture of tolerance for the expression of unpopular viewpoints thriving.
That to me is the heart of the matter. We have free speech because we are sovereigns with the right and obligation of making fully informed decisions, and because we must possess the requisite character to govern ourselves. Every time an unpopular viewpoint is suppressed or people censor themselves, we lose a little bit of our capacity for self-government. Lose enough of that capacity, and we will find we are no longer sovereign, but subjects once more. The forces that want to shut down free speech are in essence trying to turn the clock back to a time when lords and masters, not We the People, ruled the land.
NO S AFE SPACES - Dennis Prager film on free speech - in theaters Oct 25th (Constitution news round-up)
NO SAFE SPACES - Dennis Prager film on free speech - in theaters Oct 25th. Watch the trailer:
Separation of Powers, etc. - Federal judges rule against Trump immigration policies on public charges and border wall funding
Discrimination: Federal court knocks down Obamacare transgender and abortion services mandates on religious freedom grounds
1A: South Park mocks LeBron James’ ignorant comments about free speech
1A: students arrested under “obviously unconstitutional” Connecticut statute prohibiting the ridiculing of others after making racial slurs in viral video
Discrimination: Parents finally win a battle in the transgender bathroom wars after obvious harm to their kids (Georgia)
10A Commandeering: federal court upholds Florida law banning sanctuary cities in the state.
6A: judge blocks undercover sting videos from being shown to the jury in baby parts civil case
5/14A Fundamental Rights: federal judge strikes down Virginia law requiring disclosure of race on marriage applications as burden on right to marry
2A: Red Flag laws at work - guns taken from 84-year-old Korean War vet who works as a school crossing guard overhears him talking about how the school could be shot up when the resource officer routinely leaves for coffee
14A Due Process: veteran with PTSD was not given any notice his mental health or his ability to safely handle a firearm would be at issue in a court proceeding
Supremacy Clause: Supreme Court turns away case presenting the issue whether a federal agency policy preempts state law (FCC VOIP nonregulation policy)
Discrimination: lawsuit against Domino’s for failing to make website and mobile phone app accessible to the blind can continue, Supreme Court says
14A Equal Protection: former felons, granted the right to vote in Florida, sue over state law requiring them to pay their fines before voting, calling the measure an unconstitutional poll tax
4A: FISA court judge rules FBI improperly accessed foreign surveillance database containing tens of thousands of phone numbers and email addresses
10A: federal judge rules 2017 Tax Act cap on tax deduction for state and local tax (SALT) payments does not coerce states
Free Expression: “'Fake News' Law Goes Into Effect In Singapore, Worrying Free Speech Advocates”
It can’t happen here? Read on:
“Congress Drafting Bill To Create Federal ‘Social Media Task Force’ To Police Online Speech”
1A: Supreme Court term includes more than a dozen religious liberty cases
2A: Michigan lawmaker introduces legislation to impose liability for shootings in gun-free zones
2A: “NJ Magazine Ban Backfires as Not a Single One Has Been Turned In”
Dormant commerce clause challenge to Santa Monica Airbnb ban fails (9th Circuit)
Electoral College: ‘Faithless electors’ who were fined under state law ask Supreme Court to take their case
In defense of the Electoral College: “No matter how fairly one tries to allocate political power, some state or someone will have a special edge from time to time. It’s unavoidable. But it’s not undemocratic.”
Alan Dershowitz: ‘woke’ hard Left is the greatest threat to civil liberties - demand censorship to ‘feel safe’, dismiss due process and presumption of innocence
Which do you choose - America’s unalienable rights, or the UN’s perverted view of human rights that government can take away at any time on any pretext?
Law profs introduce “Interactive Web Site To Explore the 100 Supreme Court Cases Everyone Should Know”
Kudos: “Immigrants praise US Constitution, bash socialism at Constitution Week”
The new Supreme Court term starts this week and some big fights are on the docket.
The first big Second Amendment case in 10 years involves a New York City law - since changed - that attempted to confine gun rights to the home and seven specific firing ranges. Plaintiffs in the case include gun owners who want to go to other firing ranges and another gun owner who wants to transports guns between two homes. The Supreme Court could decide to dismiss the case as moot because there’s a new law changing all of this, or use the occasion to expand gun rights.
An abortion case involves a Louisiana statute almost identical to one the Court struck down in 2016 requiring abortion doctors to have admitting privileges at a nearby hospital. The 2016 Court said it’s difficult get the credential and it does little to make abortions safer. This time around, the Court could follow the same logic and declare the Louisiana law unconstitutional as an “undue burden” on abortion rights, using standard analysis from the 1992 Planned Parenthood v. Casey decision. But the Court could affirm the judgment from the 5th Circuit below upholding the statute - opening the door to more health regulations in the abortion industry - or even overturn Roe v. Wade entirely.
Three LGBTQ employment cases are before the Court this term - two involving gay men and one involving a transgender who were all terminated from their jobs. At issue is whether the word ‘sex’ in Title VII of the Civil Rights Act can be puffed up by the courts to include sexual orientation and gender identity even though Congress didn’t write it that way. If the Supreme Court plays along, then employment law in these cases would get federalized and states could no longer make their own decisions in these matters. I bet there are a lot of lawmakers around the country, who have had plenty of time to take up this issue, who wish the Supreme Court would take this problem off their hands so they don’t have to decide it or face the voters on it.
There are three DACA cases before the Court. It’s pretty much conceded at this point that President Trump has authority to terminate the DACA program and could do so tomorrow, even though these cases are pending. The lower courts in these cases all agreed that the judiciary may not review an administration decision on the DACA program made for policy reasons. The problem is the DHS memo stating the administration’s intent to wind down DACA gives a legal reason, not a policy reason, for doing so. This is pretty arcane, but you may recall the Court split 4-4 on the legality of the similar DAPA program - Deferred Action for Parents of Americans. It could be the Court will use the occasion to rule more broadly on whether such programs are legal in the first place.
Finally, depending on when the 5th Circuit makes its decision, the Texas Obamacare case could be before the Supreme Court this term. The argument follows John Roberts’ logic in the Obamacare decision in reverse. Roberts’ upheld the individual mandate as a tax. But the individual mandate tax has been zeroed out and, in effect, no longer exists. The individual mandate is otherwise an unconstitutional overreach offending the Commerce Clause. Because the mandate is now unconstitutional and was the essential linchpin of the entire law, the entire law should be struck. Stay tuned on this one.
New York City Gets Rid of Illegal Aliens
The New York City Commission on Human Rights just outlawed the use of the term “illegal alien”. The Commission will fine you $250,000 if you use the term.
Here’s how their Guidance document justifies the new rule: “‘Alien’ — used in many laws to refer to a ‘noncitizen’ person — is a term that may carry negative connotations and dehumanize immigrants, marking them as ‘other’..... The use of certain language, including ‘illegal alien’ and ‘illegals,’ with the intent to demean, humiliate, or offend a person or persons constitutes discrimination.”
As the Commission admits, the term “illegal alien” is used in many laws. It appears in six places in the U.S. Code. (See here and here.) I bet you never knew your Congress was a bunch of haters. They wrote the term into law six times. They just couldn’t help themselves.
I jest, but let’s play along and make-believe the term “illegal alien” really is hate speech. So what? Hate speech is protected by the First Amendment. You can say all the hateful things you want. The Supreme Court has been very clear - you have the right to say hateful things, no matter how much they offend people. Remember the Westboro Baptist Church that showed up at funerals picketing against homosexuality? Their speech was hateful, but it was protected. Remember the Slants trademark case where an Asian-American rock band was allowed to get a U.S. trademark even though ‘slants’ is a derogatory term that offends people? Protected.
In the Slants case, Justice Alito wrote for the Court:
The New York City Commission has a history of running roughshod over the First Amendment. It previously mandated the use of preferred gender pronouns despite the obvious constitutional problems of forcing people to use terms contrary to their beliefs and in support of a government-mandated ideology.
The Commission is out of control. They admit the term “illegal alien” is used in law, but they don’t care. They know their new rule is unconstitutional but damn the torpedoes, full speed ahead! You just have to fall in line or they’ll crack your head with a $250,000 fine.
Here’s what needs to happen. Somebody in New York needs to challenge this travesty. When the Commission sues them, they need to fire back just as hard as they possibly can. Counter-sue the government officials involved personally for acting ultra vires - beyond the law. Sue them for damages for denying people their civil rights. And go after the Commission’s lawyers’ law licenses - haul them up on ethics charges for filing baseless claims to enforce a directive they know is completely unconstitutional.
Either this, or more civil rights commissions will issue more speech codes and we will watch our freedoms slip away.
Court Rules Harvard Can Discriminate in the Name of Increasing Diversity (Constitution news round-up)
14A: federal judge rules it is permissible for Harvard to discriminate against qualified Asian applicants in the name of increasing diversity.
1A: New York City Human Rights Commission bans the term “illegal alien” (blatantly unconstitutional)
Indefinite Detention: federal judge blocks Trump administration’s attempt to end the Flores agreement and institute longer detention of illegal alien families with children
Impeachment: it’s amusing to hear people who don’t care a whit about the Constitution cite the Constitution in their impeachment arguments - they’re so transparent. E.g.:
1A: The fight is on to force Catholic hospitals to perform sex change operations in California
1A: House Dems may seek legislation to strip tax-exempt status from SPLC-designated ‘hate groups’
Due Process: Mississippi city argues in court illegal aliens have no constitutional rights. (Sorry, but this is a losing argument; 5A/14A due process clauses cover ‘persons’, not just citizens)
14A Due Process: see if you can decipher what constitutes an ‘undue burden’ on abortion rights after federal judge upholds 2 Virginia abortion restrictions and knocks down 2 others. #CrazyQuilt
Preemption: D.C. Circuit panel upholds FCC decision to rescind net neutrality rule, but leaves states free to adopt their own rules
Due Process Right to a Fair Trial: Supreme Court to hear arguments in case limiting insanity; implications for other situations where the definition of ‘crime’ is important
Kudos! To the 5-year-old boy so upset by American flag touching the ground he recites the Pledge of Allegiance (captured on doorbell camera)
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