14A Fundamental Rights: legislation banning most abortions in Alabama awaits Governor’s signature; measure is meant as a direct challenge to the Supreme Court’s Roe versus Wade decision.
11A: Supreme Court overturns precedent, bars suits against states in the courts of other states; implications for overturning Roe v. Wade
1A: Texas town stands up against Freedom From Religion Foundation bullies, keeps crosses on courthouse
1A: First Amendment protects ‘I eat a**’ bumper sticker, prof argues
Free Expression: Canadian father subject to arrest if he uses ‘wrong’ gender pronoun in describing his trans child
Free Expression: candidate for judgeship loses nomination, gets fired from his law firm for being a conservative
2A: Arizona legalizes nunchucks
5A Eminent Domain: Baltimore is failing because it does not respect property rights. Seize the Preakness - really?
5A,4A: allowing union organizers on agricultural land is not a Fifth Amendment ‘taking’ or a Fourth Amendment ‘seizure’ (9th Circuit)
8A: “death row inmates’ long-term detention in conditions amounting to solitary confinement created a ‘substantial risk’ of psychological and emotional harm” (4th Circuit)
8A: Florida man sues gangster-city over $30,000 in fines for not mowing the lawn
Discrimination: Miami’s lawsuit against banks for predatory lending to black and Latino homebuyers may proceed; city plausibly alleges disproportionate defaults and hit to tax base from banks’ practices (11th Circuit)
14A Due Process: dismissing administrative appeal after litigant relied on the agency’s guidance for proper procedure is a denial of due process (Texas Supreme Court)
Former Virginia lawmaker Bob Marshall pens book on how to reclaim the Republic
No, the trivial garbage the House Dems keep bringing up is not a ‘constitutional crisis’
1A: Scholars, writers issue statement promoting campus free speech (you can still sign; more than 500 have)
1A: San Francisco sues to force doctors to perform abortions and other procedures against their conscience
1A Religion: injection of Buddhist-inspired ‘mindfulness’ practices into schools is an unconstitutional establishment of religion, conservative group argues
2A: U.S. pulls out of Obama-era UN arms treaty
2A: “Pennsylvania GOP Rep. Moves to Impeach ‘Rogue’ Pittsburgh Mayor Over Gun Control Measures”
8A: federal appeals court rules prison must give inmate addiction treatment
4A: Supreme Court is asked to take case of 4-year-old girl who was strip-searched; case could be occasion to refine tangled ‘qualified immunity’ doctrine
5A Vagueness: Supreme Court decision from last term hampering federal prosecutions of young terror suspects
14A Fundamental Rights: federal judge strikes down Virginia law preventing nurses from performing abortions as undue burden on constitutional right
1A: Immigration rights activist successfully argues unconstitutional retaliation for protected speech when ICE tries to deport him.
1A: students have a constitutional right to call for their principal to be fired
1A: podcast considers whether what Assange did was protected journalism or cyber-crime
1A: House of Representatives can insist its daily prayer be religious in nature, not atheist
2A: website not liable for allowing searches for private-seller gun ads
4A: chalking tires for parking enforcement is a ‘search’ but may be allowable under various exceptions to warrant requirement
6A: right to a public trial is not absolute; courtroom can be cleared of the public to accommodate Muslim witness who refused to take off veil otherwise
14A: Circuit split on whether ban on toplessness for women violates Equal Protection
State Constitution: “Kansas Supreme Court Rules State Constitution Protects Right To Abortion”
Article argues Congress is the supreme branch of government, as it should be in a Republic of self-governing people
There was no Constitution Minute last week because I was at a conservative conference in Michigan. While we were inside listening to the speakers, tires were slashed outside in the parking lot, cars with Trump bumper stickers being singled out. I came back from Michigan to news that Facebook banned Laura Loomer, Milo Yiannopoulos, Paul Joseph Watson, and other non-Left voices.
This is getting serious. While we are in a golden age of free speech in the courts with the Supreme Court issuing strong opinions like Citizens United and Janus, free expression in society overall is under attack like I’ve never seen before. The attacks are coming from several directions. In January, I told you about threats to free speech on college campuses; from the transgender pronoun police; from attempts to take banking services away from the NRA; from Google, YouTube, and other tech giants; and from Europe and the United Nations. [Constitution Minute, 1/27/19]
In April, I told you about Germany ratcheting up enforcement against so-called ‘hate speech’ online and new hate speech initiatives from the Attorneys General of Michigan and Minnesota that move in the same direction. [Constitution Minute, 4/14/19] The Michigan initiative includes a hate speech database to be maintained by the state civil rights agency that will collect remarks from individuals and groups for later use. This is a direct threat to free speech because hate speech, whether you like it or not, is protected under the First Amendment. Just think of the chilling effect on free expression in Michigan because now you have to worry about whether state bureaucrats will decide what you say is offensive and put you in their database.
The Michigan Attorney General’s office testified before a state legislative committee that they would not access the database in criminal hate crimes cases. But sharp legislators pointed out that enhanced hate crime penalties are a matter of proving intent and the database of prior remarks would most surely be mined for evidence of intent in criminal cases. The database will affect hate crimes cases from the charging decision all the way through to sentencing, the legislators pointed out. The fact that the Attorney General’s office would be so coy about this does not inspire confidence, especially when you consider the Attorney General herself led off her testimony with the correct but misleading statement her office did not have such a database. This was misleading because the database is at the civil rights agency, which she knows darn well. She also tried to square the circle that hate crime penalties do not punish people for what they think. Sure, and I’m the tooth fairy.
We have free speech under attack like never before and it’s metastasizing into governmental actions like the Michigan hate speech database. It’s become clear to me we’ve turned a corner in this country and our right to free expression is now in jeopardy. Therefore, I have decided to undertake a new project to push back on threats to free speech from the authoritarian Left, the Islamists, state bureaucrats with tunnel vision, and anyone else who would take away our First Amendment rights.
I will be using my Champions of the Constitution Grassroots Network to push back. We’re in 11 states and have been pushing back on attacks on the Constitution for the last year and a half. You are welcome to join. It doesn’t take a lot of time and will not pull you away from your other activist projects. I will also be collaborating with like-minded folks, for example, activists in Michigan who are trying to get their state civil rights agency brought before the same legislative committee to testify about their database.
I see that others are coming to similar conclusions, that it’s time to do something. Jenny Beth Martin of Tea Party Patriots joined more than 400 scholars, writers, and group leaders in signing a joint statement in April calling for more protection for free speech on college campuses.
I applaud this and every other effort to protect free expression in this country. We live in a time when non-Left voices are being pushed to the margins. It’s not too hard to imagine a future where the authoritarian Left attempts to seize control of the Internet and talk radio to squelch non-Left voices entirely. At that point, they will not be content with slashing tires but will progress to slashing jugular veins. If you doubt me, read the blood-soaked history of the Left and you’ll see what I’m talking about. The time to act is now.
10A: Ninth Circuit upholds California’s sanctuary state laws, cites anti-commandeering principle
1A: California Supreme Court suspends prosecution against undercover baby parts videomaker because of political bias and selective prosecution
1A: Seattle transit authority bans all political and religious ads after losing in court to Pamela Geller on terrorist ads
1A Religion v. Discrimination: 3rd Circuit upholds Philadelphia’s ban on Catholic agency serving in foster-care system because of its views on marriage
4A: outlier Washington Supreme Court holds one may be convicted of obstruction of justice for refusing police entry without a warrant
Foreign Law: Illinois court should not have deferred to Muslim divorce decree from India because procedures there lacked basic due process rights (rights to notice and opportunity to be heard)
1A: Sheriff’s department cannot engage in viewpoint discrimination by threatening Facebook users who post unfavorable comments.
Free Expression: the concerted effort by the Left and the Islamists to silence free speech threatens our Republic
1A,2A: NRA challenges Los Angeles ordinance requiring contractors to disclose ties to group
4A: DEA’s bulk data collection program on people who bought money counters led to the seizure of $50 million despite the fact the vast majority of purchasers were never shown to be connected to drug activity
Shame! - shame on Joe Biden for saying illegal aliens are already American citizens. Your citizenship obviously doesn’t mean anything to you, Joe.
Commerce Clause: Justice Department won’t appeal lower court decision blocking federal female genital mutilation prosecutions as unconstitutional (States, it’s up to you or we have sharia, it’s that simple.)
1A: Kentucky ultrasound informed-consent abortion law upheld over First Amendment objections by doctors (6th Circuit)
1A: Do we really want to go down the road of compelled speech in this country? We will if the jack-booted thugs have their way on transgenderism (video)
1A: “Fake News and the First Amendment: Free Speech Rules” (Volokh video)
2A: Sandy Hook gun manufacturer takes steps to appeal ruling federal immunity statute unavailable (argument made manufacturer broke state law by glorifying illegal uses for its products)
2A: East St. Louis Housing Authority agrees to allow public housing residents to possess guns
4A: ‘reverse location’ warrants which sweep up data for hundreds or thousands of cell phone users raise constitutional questions
Discrimination: landlords can lawfully decline Section 8 housing vouchers, despite disparate impact theory (disproportionate effect on minorities)
Trademarks based on some racial slurs are OK but others are beyond the pale, and now the Supreme Court is wrestling with whether the same should be true for swear words.
Economic Freedom: challenge mounted to Nashville probation on home-based businesses (piano lessons, recording studios, hair care, etc.)
The leading Muslim organization in Germany called on the government to appoint a Federal Commissioner to fight anti-Muslim sentiment in the country, including so-called ‘hate comments’ on the Internet. That would raise First Amendment concerns, if an Islamophobia czar were appointed in the United States, but we’re only talking about Germany - so no worries, right?
Let’s talk about two other things that happened closer to home this week. First, Democrats in Minnesota asked the legislature to appoint a statewide “Task Force on Islamophobia and Anti-Semitism” to be chaired by Keith Ellison, Minnesota’s Muslim Attorney General or someone appointed by him. Second, Michigan’s Attorney General announced plans to ramp up hate crime prosecutions there and the Civil Rights Department will be documenting hate incidents that - get this - don’t rise to the level of a crime or even a civil infraction. Michigan’s moves are based on a report from the financially self-interested and now-discredited Southern Poverty Law Center claiming to find a six percent rise in the number of hate and extremist groups in the state. Anti-sharia groups are on that list. How would you like to be in Michigan’s new hate speech database and have the government come to your door telling you that you need to get your mind right?
Michele Bachmann said she has no doubt the task force in Minnesota, if created, would recommend authoritarian measures to curb ‘hate speech’ in the state. The goal is the insertion of Islamic blasphemy law into the state code, she said. In case you don’t know, Islamic notions of blasphemy are very different from defamation law in America. In America, truth is generally a defense to a charge of defamation. But in Sharia law, blasphemy is whatever offends a Muslim. If you say, ‘Muhammad was a pedophile’, Muslims will take offense and you will have committed blasphemy, even it’s true. It’s the ultimate heckler’s veto - find one Muslim anywhere in the world who is offended by your speech and your speech is no longer protected. Also in America, under current law, hate speech is protected by the First Amendment. Adopt Sharia blasphemy law and you can pretty much say goodbye to free speech. Free speech advocates are worried that the task force will recommend legislation penalizing hate speech in Minnesota and adopting sharia speech codes for the state, pointing to probable members of the task force from CAIR, which has ties to terror, and Muslim Brotherhood front groups.
We have kind of a paradox at the moment. We’re living in a golden age of free speech, as far as court decisions go. There have been very strong First Amendment cases coming out of the Supreme Court in recent years - Citizens United and Janus, for example. At the same time, support for free expression in society overall is being attacked by Muslims, the SPLC, and others. Conservative speakers aren’t allowed on many campuses, and that’s just fine with a distressingly high percentage of college students. We either do a better job of educating people why we have the First Amendment, or we’ll have more moves like those in Michigan and Minnesota which would have government bureaucrats deciding the parameters of acceptable speech. We will have arrived in Germany, where the truth is now hate speech and can land you in jail.
Electoral College: Delaware and New Mexico join National Popular Vote compact
Shame on CNN! The electoral college did NOT have anything to do with slavery and Madison did NOT call it ‘evil’
Discrimination: female Muslim soldier planning to sue Army after being told to remove hijab to see if hair conformed to regulations
1A: ACLU suing on behalf of former intelligence agency operatives challenging pre-publication review of their books
1A: 9th Circuit denies en banc review of decision requiring charities to turn over lists of their donors to California officials, despite district court finding state can’t keep donor names secure
Creation of ‘hate group’ monitoring units by Michigan and Minnesota AGs raises free expression concerns.
Free Expression: “Germany’s Top Muslim Organization Calls for ‘Islamophobia’ Czar”
1A Free Press: House Dems second-guessing Fox decision not to run a story about a Trump affair, demand reporter’s documents
1A Free Press: Republican bill in Georgia would establish journalism ethics board; critics call it Orwellian
2A: bump stocks are essentially machine guns which are illegal; preliminary injunction while challenge to Trump administration bump stock rule denied (D.C. Circuit)
2A: court blocks sale of 10-round clips as California appeals earlier ruling knocking down magazine ban
5A Self-Incrimination: law review article examines whether suspects can be compelled to enter a password to decrypt a locked phone, computer, or file.
14A Due Process: homeowners win first round in excessive ticketing ‘policing for profit’ case in Georgia
Preamble: Bernie Sanders supporters claim General Welfare clause makes the U.S. a socialist country. Sure, and I’m the tooth fairy.
Alexandria Ocasio-Cortez recently claimed the Republicans changed the Constitution to remove President Franklin Roosevelt from office. Of course, she was wrong. It’s common knowledge the 22nd Amendment was not ratified until 1951, six years after FDR died in office. My Champions of the Constitution network pushed back on AOC, as did many others.
But it got me to wondering: What is the story of the 22nd Amendment and why do we have it?
The 22nd Amendment reads, in pertinent part, “No person shall be elected to the office of the President more than twice....” FDR would not have been eligible for reelection for his third and fourth terms if the 22nd Amendment had been in effect at the time.
There are additional provisions in the 22nd Amendment dealing with unexpired terms, but the main point is that the Amendment codifies the two-term tradition set by George Washington, a tradition unbroken until FDR won a third term in 1940. Washington was rightly celebrated around the world for declining to become President-for-Life, which he easily could have done. Congress approved the 22nd Amendment in 1947 and it took effect in 1951 after it was ratified by enough states. Oklahoma and Massachusetts were the only states to reject the amendment.
The Framers wrestled with presidential term limits at the Constitutional Convention in Philadelphia in 1787. Hamilton and Madison supported lifetime appointments for presidents. Mason and others believed that was too much like a monarchy. A single 7-year term was proposed, but the Framers settled on 4-year terms with no limit on the number. Presidential term limits were proposed numerous times in the 19th Century, but none passed. Ulysses S. Grant sought a third term - nonconsecutive - in 1880 but lost the Republican nomination to James Garfield. Teddy Roosevelt and Woodrow Wilson also sought third terms, under various circumstances. FDR let himself be drafted for a third term in 1940, the widening war in Europe being his excuse. Dewey, who ran unsuccessfully against FDR in 1944, supported presidential term limits, calling unlimited presidencies “the most dangerous threat to our freedom”.
We think of term limits for president as being settled, but more than 50 resolutions to repeal the 22nd Amendment were introduced in Congress, starting just five years after it was ratified and continuing up until 2013. Harry Truman, Mitch McConnell, and Harry Reid all supported repeal. So did Ronald Reagan, who said the 22nd Amendment is antidemocratic.
8A: lethal injection not cruel and unusual punishment despite death row inmate’s medical condition that would generate unusual pain, Supreme Court rules
8A: Supreme Court solicitous of victims’ rights in death penalty case; called on lower courts to recognize delay is harmful to victims' families and to prevent tactical delays
8A: refusal of Texas to pay for inmate’s gender reassignment surgery is not cruel and unusual punishment (5th Circuit)
1A: Supreme Court declines to hear secret taping case involving Planned Parenthood’s sale of baby parts; lawsuit may proceed
5A: One of the remaining challenges to President Trump’s travel ban was thrown out of court. Any right to “familial association” cannot be used to demand U.S. visas for family members overseas.
So-called ‘Equality Act’ would assault conscience rights, institutionalize transgenderism, harm gender dysphoric children, and reduce adoption and foster care
Federal judge allows challenge to Illinois school district transgender locker room policy to go forward; 1A Free Exercise of Religion claim cognizable, but no 5A right not to be seen unclothed by the opposite sex
!A: federal judge rules Arkansas city’s panhandling ban is unconstitutional; physical interaction is protected by the First Amendment
1A: professor’s profanity and discussion of her and her students’ sex lives are unrelated to course material and do not fall within academic freedom (5th Circuit)
1A Religion: Sufi Muslim inmate files appeal to test whether prison can use promise of attendance at weekly prayer services as a motivator to get inmate to improve behavior
2A: California’s ban on magazines that hold more than 10 bullets unconstitutional, federal judge rules
2A: right to have stun guns vindicated in two more decisions
2A: Did the U.S. agree to full implementation of the onerous UN gun control pact? U.S. citizen info to go into global tracking database?
4A: law enforcement is entitled to rely on warrant issued by a court (good faith exception) (6th Circuit)
4A: police cannot lie to get permission to search and avoid securing a warrant. Looking for child porn, policed asked to inspect computers claiming one of them is "sending a signal and/or viruses to computers in Washington." (5th Circuit)
5A Double Jeopardy: disgorgement of profits and imposition of fines for insider trading are civil penalties and do not bar criminal prosecution for same misconduct (11th Circuit)
5A: aggressive City of Baltimore files eminent domain suit to take Pimlico racetrack ... AND THE PREAKNESS HORSE RACE!
6A: speedy trial rights violated when defendants spend 5 years in pretrial detention after evidence goes missing and prosecutors take 3 years to decide on the death penalty (2nd Circuit)
6A: right to counsel violated when appointed attorney insists on insanity defense over defendant’s objections (9th Circuit)
Original meaning of 14A Privileges or Immunities clause protects unenumerated natural rights
Shame! Eric Holder asserts ‘America was never great’ (but was forced to retreat after backlash) #HateAmericaFirstCrowd
The subject of reparations was back in the news recently, when presidential candidates Elizabeth Warren and Kamala Harris voiced their support for reparations for black Americans to redress the legacy of slavery. Warren would also consider reparations for American Indians. So I got to wondering whether reparations would be constitutional.
The subject comes up every few years and can be traced back to Martin Luther King’s call for reparations in 1963 which referred to General William Sherman’s order to give former slaves 40 acres and a mule after the Civil War. Sherman’s order was rescinded and land that had been distributed was taken back.
Does that mean that reparations should be made today? Lots of legal arguments stand in the way:
My concern is that reparations based on race breaches the principle of individual responsibility. I didn’t do anything to the black people I encounter in my life and I should not be made to pay just because I belong to a certain group. There are lots of white people whose ancestors weren’t even in the country in 1865. Group responsibility - otherwise known as guilt by association - is a very dangerous game, but let’s play it anyway, for a minute. Like a liberal friend of mine in Boston says, reparations - OK, but just wait for the counterclaim for making inner cities unlivable. Lots of blacks don’t cause problems or live outside of inner cities, you say? It doesn’t matter. The principle of group responsibility has been announced, so they shall pay no matter what they do or where they live. Here’s another claim on fairness - by the descendants of the 620,000 soldiers who died in the Civil War freeing the slaves. Under the principle of group responsibility, it is only fair and just that present-day blacks pay that counterclaim as well. So you see, all sorts of mischief starts when you breach the principle of individual responsibility and pit one group against another.
Let me suggest that we all find something better to do with our time.
The Web Team
Our web team is dedicated to bringing you Constitutional news you can use.