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A new documentary about Supreme Court Justice Clarence Thomas will be in theaters next February and broadcast on PBS in May. “Created Equal - Clarence Thomas in His Own Words” is the name of the film in which Thomas tells his life story looking directly at the camera.
Thomas was born into grinding poverty in a Gullah-speaking part of Georgia. He went to Catholic school and entered the seminary to become a priest. He left after becoming disillusioned with what he considered to be the Catholic Church’s lack of support for civil rights. At this point in his life, he was a radical Black Power leftist, angry at everything and everybody. But, over time, he came to view affirmative action as condescending and busing as divisive and ineffective. His transformation complete, he went to work in the Reagan administration then was appointed to the D.C. Circuit Court of Appeals. He was nominated for the high court in 1991. Who could forget the pitched battle at his confirmation hearings and Anita Hill’s shocking allegations that Thomas had sexually harassed her? After relentless brow-beating, Thomas accused Democratic senators at the hearing of conducting “a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas.” Most of the public did not believe Anita Hill and Thomas was confirmed. Justice Thomas has served on the Supreme Court ever since where he is known as an originalist and a reliable conservative vote. He believes judges should interpret the law, not make it up. The trailer for the new documentary is online. If you can’t wait for the movie, you might try his memoir My Grandfather’s Son which hit number one on the New York Times bestsellers list in 2007. 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. 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. 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. 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! 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. 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. 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? The Left is eating up an award winning Broadway play - “What the Constitution Means to Me” - that is about to tour the country. The playwright, Heidi Schreck, has discovered, like the producers of the play Angels in America and many other artists before her, that the ticket to success in the arts world is to tilt to the Left and serve up exactly what Progressives want to hear.
As a teenager, Heidi Schreck loved the Constitution and paid for her entire college education by going around the country giving speeches on it. Her play “What the Constitution Means to Me” features her as an adult revisiting her teenage love of the Constitution and finding fault in the document now that she’s older. Her current views are quite far to the Left. She believes that transgenders have a basic human right to serve in the military, when the fact of the matter is NO ONE has a right to serve in the military. It’s a privilege reserved for those who qualify. She’s in favor of the Climate Kids lawsuit which seeks to establish a Constitutional right to a pristine environment, even though it would mean that the entire U.S. economy would be run by one federal judge out of a courtroom in Oregon, which is what the Climate Kids are asking for. She believes that our democracy is a lie and the United States is sliding into tyranny under President Trump, even though he has not shut down any newspapers or thrown any editors in jail. Schreck suffers from full-blown Trump Derangement Syndrome. The adult Heidi Schreck has developed two problems with the Constitution, both straight out of the Left’s playbook - first, that the Constitution fails to achieve diversity and inclusiveness and, second, that it fails to protect people against the slings and arrows of outrageous fortune. With regard to diversity, Schreck says the Constitution only protects “the people who are already protected” - whatever that means - and is working perfectly as intended - to protect rich, white men. Everyone else is pushed to the margins of the Constitution, she says. We all belong in the Preamble, she declares. Never mind that the Preamble starts with “We the People”, not “We the Rich, White Men”. It’s an “appalling” document, she says, because it views blacks as property, not human beings. Never mind that the Constitution set things up to eventually get rid of slavery. [E.g., Slave Trade Clause - Article I Section 9]. The original Constitution may not look so good when viewed through the narrow prism of today’s identity politics, but this ignores the 13th, 14th, 15th, and 19th Amendments - getting rid of slavery, ushering in Equal Protection, and guaranteeing the right to vote regardless of race or biological sex. Why would you throw out a document that has shown it can bring the blessings of liberty to more and more people over time, as our Constitution has? The worn-out observation that the original Constitution included some people but excluded others is true, but misleading. Moreover, judging the Constitution by the standards of the Left’s diversity narrative du jour ignores all the things that are wrong with the narrative itself. Here are just three: First, it’s way out of balance. It crowds out other important values that the Constitution does embody like limited government, popular sovereignty, personal freedom, and individual rights. Get people all hepped up on diversity theory to the exclusion of all other considerations and, before you know it, they’re in Kentucky teens’ faces at the Lincoln Memorial [Nicholas Sandmann] and committing hate crime hoaxes in Chicago [Jussie Smollett]. Second, diversity policies hurt people. Just ask the excellent Asian students who can’t get into Harvard because of affirmative action policies favoring other groups. Third, the diversity narrative is leading to absurd results, like the resegregation of college dorms and the self-identify phenomenon where you can wake up one morning and proclaim you are something you are not and everyone else just has to bow down to it. Schreck and her play say nothing about any of these complications. But there’s a second, more fundamental flaw in Schreck’s thinking. She criticizes the Constitution for failing to protect people, like her grandmother who was the victim of an abusive childhood. “I believe we need a brand-new positive rights document...,” she says during the play. The Constitution contains mostly negative rights that keep the government from doing bad things to you, like shutting you up or searching your house without a warrant. Positive rights include various forms of economic security, such as the rights to housing, education, and a job in FDR’s Second Bill of Rights. But positive rights also include the right to police protection, thus her beef with Justice Scalia’s opinion in a 2005 case [Castle Rock v. Gonzalez] declining to find a due process right to police enforcement of a restraining order against a father who ended up taking and murdering his three children. With positive rights, the three children and Schreck’s grandmother would have been protected, Schreck evidently believes. Forget that that police don’t always get there in time and all the other real-world complications to her rose-colored view. The impulse behind all these positive rights is to have the government put a soft pillow under absolutely everybody for absolutely everything. Security in all things. As Schreck puts it, "Maybe instead, we could start thinking of the Constitution as a kind of ur-mother, whose job it is to actively look out for all of us, especially the most vulnerable among us." That’s the pioneer spirit. There’s a lot of pseudo-science coming from the Left purporting to show that people on the Right are a bunch of fraidy cats and their brains are wired differently to seek security in all things. [Language of Terror by Kendall, et al.] Never mind that Social Security was a left-wing invention. But here we see the impulse for absolute security on full display from the new darling of the Left, which gets to the heart of the matter. As told to me by a former Leftist, the Left honestly believes it can bring about heaven on earth and the end of all human suffering. They believe they alone possess the secret knowledge to fundamentally transform human nature and bring about this earthly paradise. The rest of us are too stupid to figure it out. Well, I’m sorry, but that’s a bunch of malarkey. It’s a pipedream, it’s not ever gonna happen. Which makes Heidi Schreck’s play a nice bedtime story but nothing of substance that goes beyond the realm of fantasy. So there you have it: a complete mirage from a mixed-up playwright. One minute she’s calling the Constitution “magical” and a work of “genius”, and saying it’s “appalling” the next. One minute she’s expressing her fundamental faith in the Constitution because it gives us what we need to make the country better, then calls for “a brand-new positive rights document” the next. Just because she’s conflicted and mixed up about the magnificence of our country’s founding document doesn’t mean we have to be. |
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