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When Democrats took control of the House after the last election, the question many had was whether they would focus on passing legislation or spend the next two years talking about Trump’s tax returns. The answer has become pretty clear, with the Democrats holding, announcing, or threatening hearings or investigations on Trump/Russia collusion, Trump tax returns, Trump business dealings, Trump corruption, Trump abuse of power, Trump hush money payments, Trump obstruction of justice, Trump impeachment, Trump, Trump, and more Trump.
“The Constitution ... provided no express powers for Congress to investigate, issue subpoenas, or to punish for contempt,” according to a Congressional Research Service report. But the practice was carried over from the British House of Commons whose members were considered the “grand inquisitors of the realm”. (id., p.1) Congress’ power to investigate is implied from its enumerated powers and the Necessary and Proper Clause, all found in Article 1, Section 8. The first Congressional investigation of the executive branch appears to have been in 1791, when prior business dealings of the Superintendent of Finance Robert Morris were called into question. (id., p.2) The Supreme Court first placed limits on congressional investigations in 1821 [Anderson v. Dunn] (id. p.4). The Court upheld Congress’ power to hold people in contempt, but said Congress must use the least onerous means to achieve its legislative objectives and no term of imprisonment Congress imposed could extend beyond a Congressional term. In 1881, the Court placed more limits, saying Congress could not inquire into the personal affairs of individuals without actual “valid legislation” in mind. (id. p.5) This was later loosened to any legislative purpose, including oversight of alleged wrong-doing in the executive branch. (id. p.5) Oversight could potentially result in legislation, so a later Court viewed it as fair game for Congressional hearings and investigation. The Supreme Court has also upheld Congress’ power to issue subpoenas as “an indispensable ingredient of lawmaking.” (id. p.6) Congress has expanded its powers to investigate by statute on a number of occasions, notably after 1946. Congress beefed up oversight committee staff and upgraded the Government Accountability Office - GAO. Congress now requires more than 2,000 reports from the executive branch every year. It’s a pretty safe bet that specific constitutional issues will come up as the House Democrats’ obsession with Donald Trump plays out. Will witnesses ‘take the 5th’ like Lois Lerner did? They’re certainly entitled to. The Supreme Court ruled that “[t]he Bill of Rights is applicable to congressional investigations, as it is to all forms of governmental action” in 1957 [Watkins v. United States]. Will Trump administration officials claim executive privilege and refuse to turn over documents? That didn’t work out so well for President Nixon [United States v. Nixon, 1974]. A unanimous Supreme Court rejected his claim of executive privilege and he resigned 16 days later. I’ll keep an eye out for specific issues that come up as the Democrats move forward and report back to you when I can add to your understanding of the constitutional dimensions of what is happening. When the civil rights movement started, it was about simple justice - affording remedies where discrimination could be proven with real evidence in individual cases. I handled such a case when I was a trial attorney - a black man was fired from a beer distributor and replaced with a white man who had previously worked there, and whose personnel file was marked ‘Do Not Rehire’. We found the proverbial smoking gun and got our client a nice settlement.
Unfortunately, civil rights moved on from there and the theories became more and more outlandish and poisonous. First came affirmative action - more discrimination to remedy previous discrimination, as in turning away Asian students from Harvard even though they are more qualified than the students of other races who are admitted. Then came structural racism - forget evidence of discriminatory intent in individual cases; we’ll just indict the whole society for being no darned good, without any evidence at all. And I’ve mentioned before Social Engineer-in-Chief former Justice Anthony Kennedy with his theories of unconscious bias which have been thoroughly debunked. So I was glad to see that the Trump administration is considering an executive order to cut back on another overreaching civil rights theory - disparate impact, a heavy-handed approach aggressively pushed by the Obama administration. Disparate impact seeks to change outcomes in housing, hiring, consumer credit, student loans, student discipline, traffic stops, and many other domains on the basis of statistical disparities between racial groups - without any proof of discriminatory intent at all. Discrimination is considered proven if policies or practices have an unequal impact on one group versus another. Disparate impact theory is the reason landlords and employers have backed away from doing common-sense background checks on prospective tenants and employees, even though federal agencies routinely run background checks on their own hires. It’s also why mortgage lenders have gone back to making subprime loans in inner cities, to settle federal disparate impact lawsuits which have cost them billions in fines, even though federal pressure to make subprime loans was what caused the financial crisis of 2008. School violence spiked after Obama’s school discipline reforms, something that received a lot of attention at the time. Trump’s executive order, if signed, would prohibit federal agencies from using disparate impact theory in the application or enforcement of any civil rights law. Disparate impact theory is not mandated by the Constitution. The 14th Amendment guarantees equal protection of the laws, but disparate impact theory is a concoction of bureaucrats that was adopted by the courts. Courts had to torture language in statutes to get to justify the theory. This was pointed out by the dissenters in a 2015 Supreme Court case, Texas Department of Housing v. Inclusive Communities. Justice Kennedy wrote the majority opinion extending disparate impact theory to housing, but I have to tell you it’s about the weakest opinion I’ve ever read, full of made-up stuff and make-weight arguments. Kennedy’s opinion was fundamentally dishonest, the most blatant example of results-oriented jurisprudence I’ve ever seen. Justice Thomas pointed out in dissent that the EEOC wrote openly of creatively reading disparate impact theory into statutes knowing they would get away with it because courts grant administrative agencies a great deal of deference. Justice Alito, also in dissent, illustrated the folly of disparate impact theory by relating the story of the housing authority in St. Paul which had tried to fix locks, get rid of rats, and bring about other improvements in rental properties. But this raised rents and was deemed impermissible because of the disparate impact of higher rents on minorities. Alito wrote: “Something has gone badly awry when a city can’t even make slumlords kill rats without fear of a lawsuit.” Once again we see liberal policies are not just wrong. They actually hurt people, and disparate impact theory is no exception. The theory turns the presumption of innocence on its head and is manifestly unjust. Not every statistical difference is about race. The Constitution is supposed to be about equal protection, not back-door redistribution or guaranteeing equal outcomes. But disparate impact theory will be hard to uproot, spread as it is through so many agencies and areas of law. The theory is the driving force behind scores of regulations, thousands of government lawsuits, and billions of dollars in fines. Not only that, a resistance campaign is underway and lawsuits against the possible removal of disparate impact regulations have already been filed. Congressional hearings are also in the works in the Democrat-controlled House. But with changes in personnel at the Supreme Court, this will be one to watch if President Trump follows through and signs the order. I spoke to you in January about my proposed amendment to the U.S. Constitution to allow a super-majority of state legislatures to override the Supreme Court on constitutional questions. The campaign for the amendment is now underway.
I put up a webpage and sent the link to my mailing list. I will update the page from time to time. The webpage has my Constitution Minute from January where I lay out the problem - authoritarian top-down directives from the Supreme Court - and the solution - an amendment to put power back in the hands of We the People where it belongs. That’s as far as I’ve gotten. Next steps include gathering allies and preparing the ground for public acceptance of the amendment. The best thing I’ve read on the subject recently came from Daniel Horowitz in Conservative Review in September. The article is entitled “Our Founders never thought the courts had the final say — and neither should we.” The article talks about a “dictatorship of the robes” that came about when the judiciary began to assert that its rulings applied outside the judicial branch. Prior to that moment, courts may have issued opinions on constitutional questions, but they were considered binding only on other courts, not on the other branches of government. In those days, Congress and the Executive branch were active participants in interpreting the Constitution. But now, judicial review has become judicial exclusivity, with courts having the final say on constitutional questions and issuing opinions which purport to bind the entire country, not just the parties before them or other courts. In contrast, early in our history, Horowitz writes:
Horowitz concludes by saying:
It’s often said in Tea Party circles that people get the government they deserve. If we sit back and wait for another social engineer on the Supreme Court to tell us what to do and how to be, we will deserve our fate. Or we can do something about it - join me. Tea Partiers have long been concerned about civil asset forfeiture, the practice of police departments seizing assets from, say, drug dealers, and selling them off. Nobody likes drug dealers, so what could go wrong?
Enough for a unanimous Supreme Court to rule this last week there are constitutional limits to civil asset forfeiture. A drug dealer in Indiana pled guilty, then the state moved for forfeiture of the man’s $42,000 Land Rover SUV the police had seized earlier. The man bought the SUV, not with drug money, but with the proceeds of a life insurance policy on his father who had passed away. The trial court observed $42,000 was four times the maximum allowable fine for the offense and denied the state’s request. The Indiana Supreme Court reversed, sending the case to the U.S. Supreme Court. Justice Ruth Bader Ginsburg wrote the Court’s opinion. The issue was whether the prohibition against excessive fines in the Eighth Amendment of the U.S. Constitution applies to the states through what is called the incorporation doctrine. Most, but not all, federal rights have been incorporated and bar the states, not just the federal government, from infringing on those rights. Justice Ginsburg wrote rights are not to be incorporated unless they are “fundamental to our scheme of ordered liberty,” or “deeply rooted in this Nation’s history and tradition.” Ginsburg found the principle of proportionality - that economic sanctions should be proportional to the offense - went all the way back to the Magna Carta. Proportionality also appeared many times after that, in the English Bill of Rights, laws of the American colonies, and three dozen state constitutions. She also noted excessive fines were used to keep slaves who had been freed from bondage in a state of perpetual involuntary labor. All of this was more than enough, in the Court’s view, to apply the Eighth Amendment’s prohibition against excessive fines to the states through the Due Process clause of the 14th Amendment. Justice Thomas and Justice Gorsuch concurred in the result, but wrote separately to suggest that the proper route to the result is through the Privileges & Immunities clause, not the Due Process clause. There is quite a debate going on in conservative legal circles about the meaning of the Privileges & Immunities clause, but that’s a subject for another day. For now, the Court’s decision curbs the abuses of civil asset forfeiture and reins in what critics have called ‘policing for profit’. Some cities were getting as much as 30 percent of their budget from the practice. Talk about gangster government, wow! Justice has been served because the financial conflict of interest has, to a large extent, been removed. Justice Ginsburg noted another abuse in her opinion - large fines can be used to chill free speech or retaliate against political enemies. The potential for that abuse in the states is much less after the Court’s decision. However, I should note that fans of state sovereignty will not like the reasoning in this case. To the extent state sovereignty ever really existed, the incorporation doctrine is another nail in its coffin. Civil asset forfeiture, like so many other areas of the law, has now been federalized - Washington has spoken. Before this case, states were free to impose excessive fines, but not anymore. Under our system, the federal government is supposed to have limited powers and the states are supposed to have powers of their own. Tea Partiers like federalism for this reason, but our challenge is to find constructive ways to revitalize state power as a check on a central government that has been growing increasingly more powerful and less accountable over time. The result in the asset forfeiture case last week may have been correct, but the case didn’t make the task of revitalizing federalism any easier for us. I have three items for you tonight - the green new deal, an abortion ruling, and a case about discrimination against Israel.
First, a green new deal resolution was introduced in the House this past week with 67 co-sponsors. I couldn’t find any articles analyzing the constitutionality of the resolution, which troubles me. Here you have an outlandish proposal and nobody is even asking whether it’s constitutional. When I looked over the resolution myself, I found a lot of familiar ingredients, and nothing jumped out at me as being unconstitutional, when the resolution is taken at face value. The ingredients have long been considered constitutional, things like regulating agriculture and the environment; government spending on infrastructure and public transit; and upgrading buildings. The promise to get rid of planes was widely ridiculed, but it’s from an earlier draft that talked about having so much public transit and hi-speed rail that jet travel would no longer be necessary, not taking planes by eminent domain under the 5th Amendment to the U.S. Constitution. The resolution talks about moving to 100 percent renewable energy, but government policy has long favored some forms of energy over others. The proposal is short on specifics, but it does not say that fossil fuels must be left in the ground, which would raise regulatory taking issues under the 5th Amendment. Even if regulatory taking issues come up in the implementation of the resolution, those cases are tough to make. What about guaranteeing everyone a job, whether they want to work or not? It might not be good policy, but we’ve had social programs in this country for a long time. No, the biggest constitutional objection to the green new deal I can see at present is the spirit of the thing. The massive “10-year national mobilization” would turn everything upside down and interfere with everyone’s lives. The government is not supposed to be that intrusive. It sounds more like North Korea, where people are mobilized to pick berries and nuts for Dear Leader, than America to me. We’re supposed to have limited government in this country, not massive government overreach, or mass mobilizations in peacetime whenever politicians say jump. Second item: There was a lot of commentary this past week about Chief Justice Roberts going over to the dark side and joining the four liberals on the Supreme Court in temporarily blocking abortion restrictions from taking effect in Louisiana. The Tea Party and thus my commentaries usually stay away from social issues, but Roberts’ decision is instructive in understanding how the Supreme Court works in general. Roberts is, first and foremost, an institutionalist. He can be expected to act in what he considers to be the best interests of the Supreme Court as an institution. The Supreme Court is always reluctant to overturn precedent, and is even more reluctant to do so when the case is at an intermediate stage. The posture of the abortion case this past week was not a final ruling; it was a request for an injunction while the case proceeds below. Roberts was not going to get into whether or not to overturn Roe v. Wade or other aspects of abortion jurisprudence on an interim procedural matter. What he will do when another abortion case is finally and squarely presented is still anybody’s guess. Finally, keep your eye on BDS. There’s a First Amendment issue that may end up in the Supreme Court. BDS is the Boycott, Divestment and Sanctions movement against Israel. This past week, a federal judge upheld an Arkansas law forbidding state agencies from dealing with companies that boycott Israel. The ACLU had argued on behalf of a newspaper that the law violates free speech, citing precedents from civil rights boycotts. The newspaper had refused to sign a pledge never to boycott Israel as demanded by a state college that was an advertiser in the paper. The court ruled that a business boycott is commercial conduct and not a speech issue at all, citing Supreme Court precedents. But courts in Kansas and Arizona have gone the other way and the issue is currently before the 9th Circuit Court of Appeals. I expect one or more of the anti-BDS cases to eventually make its way to the Supreme Court. I’ve said many times on this webinar that the rise of the authoritarian Left is the central challenge of our time. We have seen this rise in the Obamacare individual mandate, the anti-Trump riots, and in the way the gun grabbers won’t quit.
I went back through the news on free speech for the last few months and there it is again - the rise of the authoritarian Left and the central challenge we must face. In recent months, an angry mob chased Ted Cruz and his wife out of a restaurant and broke Tucker Carlson’s front door. These are not constitutionally protected activities. Unions are flouting the Janus decision, requiring workers to take steps to get out of forced dues and refusing to issue them refunds. Liberals in Massachusetts tried to overturn the Citizens United case with a ballot initiative limiting political spending. California passed a law requiring pro-life pregnancy centers to advertise abortion but, thankfully, the law got knocked down. The University of California at Berkeley tried to keep Ben Shapiro and other conservative speakers off its campus, but was forced to change its policies and pay $70,000 in damages. Shawnee State University got sued for punishing a professor who refused to use a transgender’s pronoun of choice. A high school in Wisconsin banned pro-gun T-shirts. Another high school, this one in Texas, tried to keep cheerleaders from putting Bible verses on their banners. New York is pressuring banks and insurance companies not to do business with the NRA and the NRA took the state to court. Atlanta had to cough up $1.2 million for terminating a fire chief for his religious beliefs. The Seattle bus authority blocked Pamela Geller when she tried to put ads on city buses. James O’Keefe got sued for secretly recording government officials, but he won in court. Prager University lost its first case against Google and YouTube, but is back in court challenging the tech giants’ censorship of its videos on state constitutional grounds, while the first case is on appeal in federal court. Those are some of the First Amendment cases that came up in the last few months. I tracked some other stories that technically don’t involve the First Amendment, but show you how the overall climate for free expression is turning hostile, thanks to the authoritarian Left and its allies. A document leaked from Google said the big tech firms have lost their free speech culture and moved toward censorship. Google employees discussed manipulating search results to bury conservative media, in order to swing the upcoming 2020 elections. A hundred Facebook employees felt compelled to form a group to fight the lack of ideological diversity within their ‘intolerantly liberal’ company. The European Parliament moved to ban ‘hate’ speech across the entire EU, calling for special police to prosecute and jail critics of radical Islam, the gay agenda, open borders, transgenderism, etc., etc. By the way, don’t you dare call Muhammad’s practice of child marriage ‘pedophilia’ because that would be blasphemy and you would be a criminal, the European Court of Human Rights ruled. People in the U.K. are being asked to report their friends and neighbors to the police for making insulting comments. I wonder if ‘stop your whinging’ qualifies. Meanwhile, the big daddy of them all, the leftist and Islamist-controlled United Nations wants to criminalize comments about migrants in its recent pact on worldwide migration. It’s not the first time the UN has attacked free speech. Why do we send the UN money, again? Connect the dots and what have you got? The authoritarian Left is on the march. Whether it’s unhinged mobs, gender pronouns, or cheerleaders in Texas, the rise of the authoritarian Left is the central challenge of our time. It is our duty as keepers of the Republic to meet this challenge head on, and put the enemies of free speech in their place. Tonight, I talk about facial recognition technology and the Fourth Amendment.
Law enforcement is already using facial recognition in some contexts, more than people realize. [“Surveilling in Secret”, Cato Policy Report, March/April 2018 at p. 9] In some places, when the police stop someone, they take a picture on the spot and identify the person with a smartphone app that searches against driver’s license photos and other picture databases. Law enforcement now has access to the driver’s license photos of 119 million people in 30 states, more than half of all American adults. Police in some places also save all mugshots in facial recognition databases for future searches. Or they take stills from surveillance camera video or cell phone video and run database searches on them. But real-time Identification is the most problematic scenario. Police are getting more interested in using video systems to immediately identify people walking by on the street, or faces in a crowd. Maybe they’re looking for somebody specific, but imagine if we had police doing this across the street from our Tea Party rallies. Chilling effect on the Tea Party? You bet. The Baltimore County police department reportedly uses facial recognition at public protests. Critics worry that this technology will have a larger impact on blacks because, proportionally speaking, there are more mugshots of black people. Critics also worry that these systems aren’t very accurate and identify the wrong people in too many cases - one out of seven, the FBI found. The systems are even less accurate when it comes to blacks, women, and young people. Imagine the number of mistakes that will be made if schools or law enforcement take facial recognition a step further and hook it up to machine algorithms that claim to be able to predict future dangerous behavior. How would you like to be caught up in that just because you look grumpy that day? A third concern is that there are no comprehensive state or federal laws governing the use of facial recognition technology in law enforcement. Few law enforcement agencies even have policies restricting the use of facial recognition to certain crimes, or prohibiting its use where there is no articulable suspicion, or preventing it from being used when the First Amendment is involved. The law is way behind technology in this area, and just beginning to come to grips with the issue. There were House hearings, and state legislators have started to look at the issue in Vermont, Maryland, and New York. Lots of legal questions will have to be decided. For example, does facial recognition constitute a ‘search’ that triggers Fourth Amendment protection? Some argue it does. What is the legal standard of suspicion police must meet before using facial recognition technology? Last term in the Carpenter case, the Supreme Court ruled that a warrant must be obtained before a person can be tracked by their cell phone. Will Carpenter be read more broadly to prevent surveillance of an individual’s activity in public without a warrant? Does it matter whether the ‘private property’ or ‘reasonable expectation of privacy’ theory of the Fourth Amendment is used? Will the Court hold the line against mass surveillance without articulable suspicion? Finally, given all the inaccurate results produced by facial recognition technology, will false positives have to be turned over as exculpatory evidence in criminal trials? The law better hurry up. Facial recognition is already in use in the United Kingdom for police body-cameras and dash cams. Also, we don’t want to end up like Russia, where facial recognition is used to crack down on anti-government protesters, or like China, which has so many cameras and has deployed so much facial recognition capability that authorities can find you within minutes of you walking out your front door. But it’s also true that facial recognition technology has been dropped already, by some police departments, because of complaints and controversies, and maybe that’s not always a good thing, either. Stay tuned - this issue is just getting started. Help – I’m being ruled by Anthony Kennedy! Or at least I was, until he retired last year. Which begs the question: who will be the next Supreme Court Justice to play social engineer? And why should we – as a self-governing people – have to put up with it?
Anthony Kennedy wrote the majority opinion in the Obergefell case in which he declared same-sex marriage a fundamental right under the Due Process clause of the 14th Amendment, and state laws against same-sex marriage a violation of Equal Protection, also under the 14th Amendment. This was social engineering, pure and simple. He had a vision of the perfect society and declared it from the top down, instead of waiting for genuine organic social change from the bottom up. Obergefell is not the only example of his social engineering. Remember his theory of ‘unconscious bias’, which has been debunked? According to Anthony Kennedy, we must all be prevented from exhibiting prejudices we don’t even know we have. Kennedy used that theory in a 2015 case to allow housing discrimination claims based on population statistics, without any showing of discriminatory intent, thus opening the door to requiring subsidized housing in his ideal locations. More top-down, cram-down social engineering from the former Justice Anthony Kennedy. How did we get to this place, where Supreme Court Justices come to think of themselves as ‘engineers of human souls’, as Stalin put it, enlightened beings whose job it is to ram their vision of a perfect society down our throats? The answer is there’s a hole in the Constitution. The text of the U.S. Constitution is silent on the question of who gets to decide constitutional questions, short of constitutional amendment. Our system was dramatically changed when the Supreme Court arrogated to itself the power to declare statutes unconstitutional in Marbury v. Madison in 1803. This is euphemistically called ‘judicial review’. It doesn’t make any sense to me that nine unelected judges – or five who make up a majority of the Supreme Court – or a single swing Justice like Anthony Kennedy – get the final say on constitutional questions in a constitutional Republic where the people are supposed to be sovereign. Why should nine unelected masterminds get to decide what are fundamental rights for the entire country, and what are not? This is not the Rule of Law; it’s the rule of the subjective opinion of the tiniest of elites. I propose a constitutional amendment to allow a super-majority of state legislatures to overrule decisions of the Supreme Court on constitutional questions. Why state legislatures? Because of all the institutions we have, state legislatures seem to me to be the closest to the people. They are the best expression of popular sovereignty that our Republic has. The idea for this amendment is not original with me. Mark Levin proposed it in his book The Liberty Amendments in 2013 [p. 211]. Some will argue that judicial review is a good thing and point to the fact that Alexander Hamilton wrote in favor of it in the Federalist Papers, No. 78. However, Hamilton predicted a judiciary that would remain weak, calling it the “least dangerous” branch. Hamilton wrote that the judicial branch is not in control of the military or the purse strings. It has no real power to enforce its judgments, and thus could never become a major threat to the liberty of the people. Courts would never become arbitrary because they would be bound by rules and precedents. Well, things didn’t work out that way, did they? Since Marbury, the Supreme Court has uttered its pronouncements and, with few exceptions, the rest of us fall in line. Now the Court is making stuff up, like fundamental rights out of thin air, regardless of precedent. This was all foreseen by the Anti-Federalist Brutus who wrote that, with unchecked judicial review, judges would substitute their will for the plain text of the Constitution:
It’s time We the People reclaim our sovereignty. This year, I begin exploring the fine points of what I call the ‘popular sovereignty amendment’ and what it would take to put the idea before the American people. Your comments and suggestions are welcome. Let’s reinvigorate the amendment process and have a full discussion of who should be running the show. Last year at this time, I talked to you about the constitutionality of Christian nativity scenes under the Establishment Clause of the First Amendment of the United States Constitution. I told you how the rule evolved over time to allow nativity displays in public places, but only if they are deemed to serve secular purposes such as celebrating a holiday or depicting the origins of that holiday. The displays that have passed constitutional muster in recent years have all included non-Christian symbols, like plastic reindeer, leading some to derisively call the current state of the law on this subject the ‘reindeer rule’. I showed you how, through the wizardry of Supreme Court jurisprudence, the Establishment Clause – which, on its face, has nothing to do with passive religious displays – is now the ‘endorsement clause’ – Congress shall make no law constituting an endorsement of religion, or appearing to favor one religion over another. Originally, the Establishment Clause was addressed to situations, like in my own state of Virginia, where the government in colonial times had ordered everyone to attend a particular church and had even paid the ministers. That’s the establishment of a state religion, no question about it.
But now that Pandora’s Box has been opened – can I say that without endorsing Greek mythology? - the issue will probably never go away. Three current situations show how the battle continues. In the first, a 4-foot Satanic statue is now on display in the Illinois state capital building alongside a nativity scene. The Satanic Temple of Chicago – which says it’s merely a benevolent association – applied to display the statue and the Illinois state government decided the group has the same rights as any other religious organization, so its display could not be censored. The Satanic Temple says it does not actually worship Satan; it’s just a group of atheists, humanists, and free speech activists. So how is that a religion? The Supreme Court has never really defined ‘religion’ beyond saying it must be a set of sincerely held beliefs, no Deity required. [Chemerinsky, Constitutional Law: Principles and Policies (4th ed. at 1231-34]. Atheism and humanism certainly qualify under that loose definition. The second situation involves a 4-story tall World War One memorial in the shape of a cross in a Maryland suburb of Washington, D.C. The Fourth Circuit Court of Appeals emphasized the Christian origins of the memorial in ruling that it violates the Establishment Clause and must be removed. [American Humanist Association v. Maryland-National Capital Park & Planning Commission] That case is now in the Supreme Court. The third situation involves a cross that has been in a Pensacola city park for 75 years without controversy, up until now. A three-judge panel of the 11th Circuit has ruled that the cross must come down. The city wants the Supreme Court to take the case, arguing that long public acceptance of the cross is enough to make it kosher under previous Supreme Court precedents and, further, that the passage of time before any legal challenge was mounted indicates that just about nobody considers the cross to be an ‘establishment’ of religion. As of this writing, the Supreme Court has not indicated whether it will take the case. From time to time on these webinars, I have criticized the Supreme Court for deviating from the Founders’ design. When the Supreme Court stopped requiring active measures imposing a state religion to make out violations of the Establishment Clause, and veered off into deciding whether passive religious displays endorse religion, it opened the door to an endless stream of cases where it would have to decide on fine shadings of fact what is and what is not an ‘endorsement’. How many reindeer are enough? None of this would be necessary if the Supreme Court had stuck to the original meaning of the word ‘establishment’ in the first place. But that’s just me. Like I said, this issue isn’t going away. See you same time, a year from now. A federal judge has thrown out the federal female genital mutilation statute and dismissed the key charges in the Detroit FGM case.
I first told you about this case last year. At that time, the Muslims charged in the case were raising a religious liberty defense, arguing that they had acted within their constitutional rights on the facts presented. But the focus changed to the Commerce Clause and the judge ruled that FGM is a local criminal activity within the purview of local authorities and beyond the reach of Congress to regulate. The Commerce Clause is in Article 1, Section 8 of the U.S. Constitution. It’s what gives Congress the power to regulate commerce among the several states. You may recall that Chief Justice John Roberts found that Obamacare violated the Commerce Clause before doing judicial backflips and upheld it as a tax. The Detroit case was the first prosecution under the 22 year-old federal FGM statute. Prosecutors claimed that as many as 100 girls from Michigan, Illinois, and Minnesota had been cut. The defendants argued that FGM has nothing to do with commerce, that “mutilation is not an economic activity.” The government argued that children were transported across state lines and that the procedures were arranged with the use of cellphones, and involved medical tools and drugs sold in interstate commerce. They further argued that a healthcare service is a commercial service. The judge knocked down the FGM statute as unconstitutional and dismissed most of the charges against the two Michigan doctors. In his opinion, the judge wrote that FGM may be a “despicable” practice, but it’s up to the states to regulate it. He recounted a long history of cases saying the federal government can’t touch purely local crimes. He said there was nothing commercial about FGM. It’s just an assault and, like rape, has no effect on interstate commerce. He relied on a precedent knocking down part of the Violence Against Women Act on the grounds that sexual assault has no effect on interstate commerce. He pointed out that, in the Detroit case, there was “no suggestion the procedure was done for money.” If there was evidence in the record that money changed hands, it was not reported in the stories I read. The U.S. Attorney’s office hasn’t decided yet whether or not to appeal. Serious conspiracy and obstruction charges remain and are set for trial in August 2019, although there is now a motion to dismiss a conspiracy charge. There is a state FGM statute in Michigan, but the defendants in the Detroit case can’t be charged under it because it was passed after the federal case arose. You can’t charge people retroactively; that would be an ex post facto prosecution and unconstitutional under Due Process and Article 1, Section 9 of the U.S. Constitution. You might recall a Commerce Clause case from the New Deal era, Wickard v. Filburn. The wheat in that case was consumed locally on the farm where it was grown and never crossed state lines. But the price stabilization statute was upheld because the farmer’s actions were deemed to have an effect on wheat prices elsewhere, so there was an effect on interstate commerce. We have, in the Detroit case, people who did cross state lines, but the statute was knocked down. If this doesn’t make any sense to you, welcome to the wacky world of constitutional jurisprudence. There were other problems with the judge’s opinion. There is a distinction in the law between a facial challenge to a statute and a challenge to the statute as it is applied in a particular case. A successful facial challenge means there is no set of facts imaginable under which a law could be constitutional. A successful ‘as applied’ challenge means that the law is unconstitutional on the facts presented, but there might be other facts where application of the law would be constitutional. In the Detroit case, the judge said that FGM is not an economic activity or healthcare service. But what about potential cases in the 23 states that don’t have their own FGM statute making such cutting illegal and there is evidence in the record that money changed hands? Under those facts, there would be no local crime and the commercial nature of people crossing state lines to consume a healthcare service would be undeniable. Voilà! – the effect on interstate commerce the judge said was lacking in the Detroit case justifying Congressional regulation and the federal statute. The judge did not limit his ruling to the way the statute was applied. Instead, this judge went out of his way to knock down the entire federal statute as unconstitutional on its face when there are circumstances under which it could be constitutionally applied under the judge’s own reasoning. The judge’s opinion does not hang together, logically speaking. An appeal could go either way but, for now, the ruling only applies in the District where the judge sits. He did not issue a nationwide injunction, as is the fashion these days. It will probably be a long time before the issue reaches the Supreme Court and is decided there. The Supreme Court often waits for a conflict between Circuits or other courts of appeal. But there is a code of silence regarding FGM in Muslim communities, so there are few potential complainants and, consequently, few prosecutions will be brought around the country, if any are brought at all. These would have to work their way up through the appeals process and produce divergent results before the Supreme Court would get interested, if the common pattern holds. Be that as it may, pressure will have to be brought on state and federal prosecutors to do their jobs and bring cases, or one tentacle of sharia law will have effectively extended its reach over America. I discussed the Detroit case in greater detail on Sharia Crime Stoppers radio and you can find the archive here. |
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