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.
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
5A Due Process: 20 states sue Trump administration over indefinite detention of migrant families
1A: videographers cannot be compelled to serve same-sex weddings, 8th Circuit rules
5A Due Process / Equal Protection: Kentucky county clerk Kim Davis held personally liable for refusing to issue same-sex marriage licenses after Obergefell case. Hero? Or villain who should have complied or resigned?
1A: Trump files en banc appeal of 2nd Circuit panel order prohibiting him from blocking followers on Twitter
1A Free Press: federal judge dismisses more counts against baby parts videographer David Daleiden for lack of evidence, but the rest will go to trial
Free Expression: D.C. Circuit refuses to summarily dismiss Laura Loomer appeal in case against Google for censorship; an appellate panel will hear the merits
Discrimination: multitudinous friend-of-the-court briefs filed with Supreme Court oppose puffing up ‘sex’ in federal law to include ‘gender identity’. (Congress should decide this but they’re cowards, hoping the Court will relieve them of the responsibility).
8A: 9th Circuit strikes again - denying transgender surgery is cruel and unusual punishment; state to appeal
14A Equal Protection: federal judge rules transgenders entitled to Medicaid coverage for gender reassignment procedures, because everybody knows this is just good healthcare. Sure.
5A Due Process: Trump administration asks Supreme Court to lift order blocking third safe country rule
1A: federal judge in Kansas knocks down federal law prohibiting people from “encouraging” or “inducing” illegal immigration
14A,8A: Supreme Court to hear case of Kansas man denied insanity defense under state statute
6A: thousands of convictions in Oregon could be invalidated if Supreme Court rules nonunanimous juries unconstitutional next term
1A Religion: Bibles, Qurans, Talmuds, and religious displays now permissible under revised rules at the VA
Discrimination: Justice Department sues Baltimore County police for discriminating against black applicants; skills tested on written exam not job-related
Separation of Powers: second court invalidates Obama-era EPA ‘waters of the U.S.’ rule for agency overreach
1A Religion: South Carolina town lifts ban on renting civic center for worship services in court agreement
2A: case of mistaken identity strips Florida man of Second Amendment rights under state ‘red flag’ laws
4A: split deepens over whether and to what extent police can search a computer a private party brought to them but owned by someone else; issue appears headed to Supreme Court
4A: man arrested with 30 pounds of cocaine, but police need reasonable suspicion phone contains ‘digital contraband’ before they can download and search it without a warrant
5A Eminent Domain: property owners win a few rounds in ongoing litigation arising from deliberate flooding by Houston to manage Hurricane Harvey
Electoral College: What if the Electoral College really did choose the President, as the Founders intended?
Kudos! to the academic suing her college for aiding and abetting the shouting down of her remarks in favor of the Pledge of allegiance at a board of trustees meeting
The Constitution is not only one of America’s founding documents, it can be a really good engagement tool for your festival booths.
My Tea Party created a Constitution quiz and it was a big hit at the Irish festival in our area yesterday. We had as many as eight people taking the quiz at one time. A big sign - How Well Do You Know Your Constitution? - and a scoreboard underneath drew people to our booth.
The questions, ten in all, started off easy - What is the age requirement for U.S. President? What amendment protects the right to keep and bear arms? The questions got harder from there: True or False - Laws enacted by the States are the supreme law of the land. True or False - Members of Congress can give themselves a pay raise before the next election.
A couple of the questions were disputed by Constitution geeks. For example: Does the General Welfare clause authorize social spending? We asked the question because actions justified by the General Welfare clause are supposed to benefit all the people, not just a subset like people who receive government checks, yet the General Welfare clause is being cited more and more often now to justify all kinds of things, including more social spending. Two people objected to the question, arguing that writing government checks to welfare recipients ultimately benefits all the people. So we will drop out problematic questions in future events because the point of the exercise is to educate the public about the Tea Party and our core values, not spend 20 minutes debating fine points with Constitution geeks. After scoring each individual who took the quiz and placing a colored dot on the scoreboard to mark their results, we quickly pivoted to asking what they think the Tea Party stands for. Many had never talked to a Tea Partier before. We gave each individual a card expressing our core values and giving our website address.
It was very gratifying to see so many people who know next to nothing about the Tea Party display such an interest in the Constitution. It is often said the Constitution is one of the few things left that all Americans have in common. The tremendous interest the quiz generated at our booth yesterday certainly shows lots of ordinary Americans are still very attached to our Constitution - and this was in a Deep Blue area! There’s hope for this country, yet.
5A Due Process: Trump administration moves to scrap the Flores Agreement and detain migrant families longer than 20 days
Nationwide Injunctions: 9th Circuit denies nationwide injunction blocking Trump administration ‘safe third country’ asylum rule; injunction in effect along the Texas border.
5A Due Process: Class-action lawsuit filed against Trump administration over poor medical care in immigration facilities
5A Due Process: Three states sue Trump administration to block new rules denying permanent residence to legal immigrants who have been on welfare.
14A Due Process: federal judge tosses illegal alien’s class-action lawsuit against Virginia sheriff cooperating in 287(g) ICE detainers
Separation of Powers: Trump administration submits brief in DACA case, arguing it has the legal authority to terminate by executive order what Obama created by executive order
9th Circuit declines to block Trump administration defunding of Planned Parenthood while litigation continues
1A: baby parts videographer David Daleiden facing tough sledding - $195K fine stands and felony prosecution resumes in September
5A Regulatory Taking: San Fran landlord sues in federal court to overturn ‘lifetime lease’ ordinance (Supreme Court recently opened the door to federal court in eminent domain cases, so more are expected)
1A Speech/Religion: real estate agent sues state regulator for seeking to prevent her from using ‘Jesus Loves You’ and other religious speech in her emails and business
14A Equal Protection: Virginia school board to appeal federal judge’s transgender bathroom order
14A Equal Protection: Domino’s petitioning Supreme Court to hear case testing whether company can be required to make its website accessible to the disabled (e.g., install code enabling screen readers for the blind)
1A: theory of Prager U social media bias case - social media can decide to be publishers or public forums, but not both (they want to curate but avoid liability for content)
1A: you can still criticize your government (restraining orders fail in court in 2 cases)
4A: anal cavity search under sedation for drug baggie held unreasonable search (too intrusive and a risk to the accused’s health)
8A: confining prisoner in cold constantly lit room with no bedding or toilet paper with only ‘paper-like garments’ to wear is cruel and unusual punishment
5A: 5th Circuit upholds Indian Child Welfare Act over discrimination claims
Article 1, Section 9: defendant gets evidentiary hearing in habeas corpus case where witness recanted multiple times (saying police threatened to take her kids away) and a new witness said she saw the actual killer
Electoral College: states have no power to require electors to cast their vote for the winner of the popular vote in the state
Discrimination: college tennis coach, fired after school declined to interview witnesses following false accusation of sexual harassment, makes out prima facie case of sex discrimination (2nd Circuit)
Shame! on the American Bar Association for effectively proposing to do away with the presumption of innocence in sexual assault cases; ‘affirmative consent’ standard would lead to absurd results
Shame! on the New York Times for its ‘1619’ junk history project claiming slavery explains absolutely everything about America
Kudos! to the Florida high school teacher who was expelled from the classroom for defending the Pledge of Allegiance
Call to Action from Individuals United for Freedom:
If you disagree, please call
Duval County Schools communications: 904-390-2126
First Coast High School: 904-757-0080
Suppose it’s the year 2011 and Texas passes a law no presidential candidate can appear on the ballot unless the candidate releases their college records to the public. You might recall that President Obama refused to release his records from Columbia University. What do you think would have happened if Texas had passed such a law? The Obama campaign would have screamed the law was unconstitutional, Republicans in Texas would have countered that the law promoted transparency, and the Supreme Court would have ruled in Obama’s favor, if my analysis is correct.
California recently enacted a law requiring presidential and gubernatorial candidates to release five years of tax returns before being allowed to appear on a primary ballot. President Trump and the RNC sued California earlier this month to block the law.
It seems pretty cut and dried to me - Article II, Section 1 of the U.S. Constitution lays out the qualifications for President. It talks about the President having to be a natural born citizen and at least 35 years old. California - or any other state, for that matter - cannot add extra qualifications like releasing tax returns before someone can be President. That is, indeed, one of the arguments made in the lawsuits. The Supreme Court ruled in 1995 that states could not add term limits to the qualifications for members of Congress. Moreover, the Supreme Court has not looked with favor on states trying to add restrictions in a nation-wide electoral process.
The lawsuits go on to argue that the California law violates the First Amendment for targeting President Trump for his political views, violates the 14th Amendment, and is preempted by the federal statute requiring candidates to file financial disclosure forms.
So are the law professors and others who support California’s law completely crazy? Well, maybe not completely. They argue, first, that states can impose some requirements, like a signature-gathering process for independent candidates in federal elections. But when Ohio tried to impose an early filing deadline on independent candidate John Anderson in 1980, it got shot down. Next, it is argued that California’s law merely gives voters information they care about and applies equally to all candidates. Third, some say California’s law only affects party primaries, not the national election. But the Supreme Court extended constitutional protections to primaries in 1941 [United States v. Classic]. Finally - and this is really exotic - it’s been argued that Presidents are not elected by popular vote and states have wide discretion to set requirements for who may serve as electors in the Electoral College. Therefore, it is argued, there is nothing wrong with requiring that electors only pledge support to candidates who have released their tax returns.
All of this is too clever by half. It’s dangerous to make predictions, especially about the future, but I’ll go out on a limb and predict the judicial branch will ultimately find California’s law adds extra qualifications to the office of President and is, therefore, unconstitutional. The stakes are high because same law has been proposed in at least 25 states. If California’s law is upheld, Trump could be off the 2020 ballot in half the country. Stay tuned on this one.
I was appalled when I saw a picture of a biological boy maintaining a stranglehold over a girl contestant in a school wrestling match. This is the insanity that results from letting boys who self-identify as girls take over girls’ sports
I’m not the only one who is struck by the basic unfairness of the situation. In June, three female high school athletes in Connecticut filed a complaint with the U.S. Department of Education for Civil Rights alleging that the Connecticut Interscholastic Athletic Conference unlawfully discriminated against girls when it allowed transgenders to compete in girls’ sports. The girls argue that the school policy violates Title IX, a federal law passed in 1972 to protect equal athletic opportunities for women and girls. The Obama administration opened the door to allowing boys in girls’ sports when it usurped legislative power and administratively puffed up the definition of ‘sex’ in Title IX to include ‘gender’, thus protecting transgenders against discrimination. So, does protection for transgenders trump protection for female athletes for whom Title IX was written? We’re going to find out. This last week, the Department of Education granted the request to investigate the girls’ allegations of illegal discrimination against them. The case will go forward.
Title IX states that, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving Federal financial assistance.” Title IX is an example of how the 14th Amendment’s Equal Protection clause has been interpreted and applied over time.
The complaint describes how one boy, who didn’t do so well in male track events, all of a sudden started competing in girls’ events. That student now holds 10 records that used to belong to 10 different girls. The girls complain, and rightly so, that the inclusion of boys in their events has deprived the girls, not only of recognition and publicity, but of college recruiting and scholarship opportunities. This is yet another example of how liberal policies are not just wrong, they hurt people. It’s also an example of the pretzel logic of the Left where you can complain all day about the evil patriarchy, then turn around and make sure the patriarchy squelches any real chance girl athletes have for advancement. Can it get any crazier than this?
Connecticut Girls Sue Over Letting Biological Boys Compete in Girls Sports (Constitution news round-up)
14A: Connecticut girl athletes file federal complaint over school rule allowing transgenders into athletic events; biological boys rewriting the record books and denying college scholarships to the girls
Free Expression - draft executive order would direct FCC, FTC to scrutinize tech company censorship of the Right; critics say it smacks of speech police
Separation of Powers: Dems call Trump’s foreign aid freeze unconstitutional blockage of Congressional appropriations
Kirsten Gillibrand files brief telling Supreme Court conservatism is sick and threatens court-packing legislation to ‘heal’ the Court. #NiceSmileTeethOfIron
17A: federal court to decide whether appointed Sen. McSally can serve 27 months without special election
1A: federal appeals court greenlights Baton Rouge cop’s lawsuit against BLM organizer for his part in injuries cop suffered during protest; conduct is not speech
1A: federal workers union suit alleges interpretation of Hatch Act keeping them from advocating impeachment or using #resist online violates free speech
1A: “Texas Appellate Court Strikes Down Electronic Harassment Statute” - ban on online speech unconstitutionally vague and overbroad.
2A: The Problem with 'Red Flag' Laws (new article)
5A Eminent Domain - D.C. Circuit reaffirms “Kafkaesque” practice of letting private companies use eminent domain and issue ‘petitions for rehearing’ without triggering federal appeal rights
10A: federal judge rules Trump administration can’t withhold law enforcement grants from sanctuary Portland (but last month 9th Circuit found a ‘bonus point’ system kosher)
14A: article suggests reparations fail Supreme Court test for allowing ‘reverse discrimination’ against whites; no ‘compelling governmental interest’ that would survive ‘strict scrutiny’
14A: married male couple wins battle in Utah Supreme Court against state law requiring at least one surrogate parent to be female.
14A: federal judge buys artificial ‘gender identity’ construct baloney, hands transgender student a win in a bathroom case; another transgender case is pending before the Supreme Court. #AntiScience
14A: federal judge in Alaska rule Christian women’s shelter cannot be forced to admit transgender
Article I, Section 10: North Dakota law retroactively changing terms of contracts between manufacturers and dealers of farm equipment violates the contract clause (Eighth Circuit)
Article suggests replacing Chevron deference with giving additional but not conclusive weight to agency determinations
Kudos! to U.S. Olympic Committee for preparing to punish U.S. athlete who took a knee at Pan Am Games in violation of commitment to refrain from political demonstrations
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