Discrimination: federal judges temporarily block Trump administration’s transgender healthcare rule and Idaho’s attempt to prevent transgenders from competing in female school sports; Bostock looms (even though Gorsuch promised it wouldn’t)
Emoluments: 2nd Circuit won’t review emoluments case en banc; three cases ready for Supreme Court to take up
Emergency Powers: could Congress or the President force everyone to wear masks in the pandemic? Law prof says no.
1A Religion: community college professor in Arizona prevails against CAIR-backed Muslim student who objected to being tested on factual course material unfavorable to Islam; not an ‘establishment’ of religion
1A: Law prof says protests outside particular homes can be banned, but restrictions must be content-neutral and not prevent marching through a neighborhood
1A: 8th Circuit upholds restrictions on grand jurors’ speech; compelling state interest in preserving grand jury secrecy meets strict scrutiny test
1A: Iowa State University stops professor from threatening to expel students from class who argue against gay marriage, abortion, BLM, etc.
2A: Ninth Circuit holds California gun magazine ban and confiscation scheme unconstitutional; Biden wants the same gun magazine limit the Ninth Circuit just knocked down
14A DP/EP: Maryland high court upholds Baltimore’s 300-foot restriction on food trucks
14A EP: 5th Circuit finds all-male draft constitutional under controllling precedent, but signals different treatment of women might not withstand another Supreme Court look because they are now combat-eligible
Shame! on the rioters who tore down a statue of George Washington near L.A. city hall. Evidently, they would prefer living under a King and Britannia ruling the waves
My friends, the rise of the authoritarian Left is the central challenge of our time.
We saw it when they rammed Obamacare down our throats and we see it again this summer with Antifa rioting and cracking heads in the streets. On another front, the ACLU is suing a Catholic hospital to force it to perform transgender surgery against its beliefs. Nothing against transgender people, but the authoritarian Left is using them to come after your religious liberty.
If the authoritarian Left gets ahold of the reins of power, we will no longer be a free people.
My friends, this is why the Constitution matters. It is worth fighting for, it is worth dying for.
We are still a free people, in no small part because of the Constitution.
We govern ourselves. We don’t have a king or a tiny elite ruling over us. We have popular sovereignty, thanks to the Constitution.
We have the Rule of Law in this country. We are not governed by the whims of a tyrant or a small group of self-appointed masterminds, thanks to the Constitution.
We have individual rights. We are free to speak our minds. We have the right to bear arms which shall not be infringed, thanks to the protections in the Constitution.
Our rights don’t come from government. We are born with these rights. The truth of the matter is that government’s rights come from us, thanks to the Constitution.
We have limited government with powers derived from the consent of the governed, thanks to the Constitution.
Not so in the autonomous zones we saw in Seattle and elsewhere this summer.
There, power grew out of the barrel of a gun, just like Chairman Mao said.
There was no Rule of Law, no consent of the governed.
There were no elections, no guaranteed rights.
The individual was not protected, just like communism.
Self-appointed warlords carrying assault rifles told everybody what to do, just like the Soviet communists did in Ukraine when they were stealing all the grain in the Holodomor famine that killed millions in the 1930s.
This concentration of power in the hands of a few is exactly what our Founders warned us about.
You put too much power into the hands of too few people and bad things happen.
You put too much power into the hands of too few people and pretty soon 100 million people are dead, as under communism.
Too much power got into the hands of too few people in Seattle’s autonomous zone and people got shot. One died. One too many. That wasn’t limited government; that was might makes right and its inevitable result when the Rule of Law breaks down and raw, naked power is the only game in town.
At a basic level, the dispersal of power is what the Constitution is all about. That’s why there are checks and balances, separation of powers in three branches of government, and powers divided between Washington and the states under federalism under the 10th Amendment. The whole point is to divide up power in as many ways as possible, so the few can’t take over everything, and the many are left in peace to enjoy their liberty and their natural rights.
This is why the authoritarian Left hates the Constitution so much. The Constitution is in their way. The Constitution stands between them and what they want to do to you. This is why they want to interpret it out of existence or get rid of it altogether. The Constitution prevents them from seizing all power and imposing their will on us.
The Constitution with its Bill of Rights is what stands between you and AOC, the Squad, the self-declared socialist Bernie Sanders, the Antifa goons whose roots are in communism, and the admitted ‘trained Marxists’ of Black Lives Matter.
My friends, the authoritarian Left is coming for you and your rights.
Will you be ready? We will ALL have to be ready if we are to prevail and remain a free people.
Ten-part video series on sharia and Constitution explains the conflicts between sharia and the Constitution (Constitution news round-up)
Ten-part video series on sharia and Constitution explains the conflicts between sharia and the oath of office, freedom of speech, freedom of religion, the constitutional guarantee against cruel and unusual punishment, etc. The series concludes with action steps you can take regarding the 93 percent of Muslim politicians who won’t express support for the Constitution.
Article II,12A: Here we go again - Is Kamala Harris a “natural-born citizen”?
Discrimination: Bostock Strikes Again! Cited to decide bathroom case though Gorsuch professed his opinion would not be deciding anything of the kind.
1A: Road to Litigation - street paintings of Black Lives Matter YES, but Preborn Lives Matter, Back the Blue, and No One is Above the Law NO
1A: Big constitutional problems with asking faculty and students to sign a Black Lives Matter loyalty oath and social justice warrior pledge (aka ‘antirracism’); non-signers could be subject to retaliation.
Free Expression: 45 heavy-weights hit back against cancel culture, ask Americans to sign ‘Philadelphia Statement’ declaring offensive speech is not ‘violence’
Free Expression: Professor at left-dominated school fights to offer course critical of Marxism to all students
1A: K-12 student speech rights not limited to political speech (1st Circuit)
2A: Article discusses gun rights of the formerly mentally ill - should a teenage girl who spent time in a psychiatric hospital for an eating disorder be forever barred from owning a firearm?
6A: COVID-restricted proceedings with spectators watching on streamed video comports with Public Trial Clause (federal judge, Alabama)
8A: Louisiana Supreme Court declines to intervene in case where defendant got a life sentence for stealing a pair of hedge clippers (he had priors)
14A Equal Protection: allowing dining but not weddings at COVID-restricted restaurant is unconstitutional selective enforcement (federal judge, NY)
Two North Carolina judges create free, online course about the U.S. Constitution for high school students
1A, Equal Protection, Due Process: federal judge finds voters were disenfranchised and orders New York to count mail-in ballots that were not postmarked or arrived late in June congressional primary. What a mess!
1A: Sixth Circuit upholds Ohio law requiring in-person collection of ballot petition signatures, despite pandemic
1A: prosecutors to drop condition of release ‘don’t attend any more protests’ in Oregon cases (the constitutional question is complicated)
1A: President’s executive order on social media does not give private right of action when account targeted
Free Expression: UK Muslims throw Christian woman to the ground for criticizing Islam
1A/2A: California uses red flag law to take gun from man who ‘posted racist rhetoric and propaganda online’ (predictions of future dangerousness from people whose politics we don’t like? WOW! Sounds like a European speech code to me.)
2A: “Gun Stores Have Standing to Raise Their Customers' Second Amendment Rights” (4th Circuit)
14A Due Process: Kansas Supreme Court strikes down state knife statute as vague and overbroad - what is a “dangerous or deadly cutting instrument of like character”?
Shame and Kudos - Shame! on two entire NBA teams for taking a knee during the National Anthem and Kudos! to the two NHL teams who stood for the Anthem at season openers
‘Rioters Have Been Grabbed Off the Street Without Probable Cause’ - Round One Goes to the Government
Congressman Ted Lieu of California and other Democrats have alleged that federal agents have seized protesters, placed them in unmarked vehicles, and detained them for several hours before releasing them. Lieu called these ‘police state’ tactics.
The Fourth Amendment to the U.S. Constitution protects people against unreasonable search and seizure. The state of Oregon recently went to court to get a temporary restraining order to prevent the federal government from seizing protesters off the street without probable cause in the future. Oregon lost.
The federal judge assigned to the case began his opinion by pointing out that protesters whose rights are violated can sue for money damages and injunctive relief themselves. But this case was different because the plaintiff was the state of Oregon, not a protester. Moreover, the state was suing to stop unlawful practices from happening in the future, not to redress harm done to protesters in the past.
Several pages later, the judge concluded that Oregon lacked standing to bring such a case, because it had no interest in the matter specific to the state itself. The opinion referred to numerous reports cited by the state that federal agents were grabbing protesters and shoving them into unmarked vehicles. The allegations, if true, amounted to ‘”seizures” under the Fourth Amendment, the judge acknowledged. However, the Oregon Attorney General overstated the evidence. The judge reviewed the evidence the state presented, and found there was only one instance of an arrest without probable cause and one case of an unreasonable seizure. The judge found it notable that the state did not pursue the notion - or request any relief - regarding the supposed use of unmarked vehicles. The state let that assertion go. Overall, the judge said the state’s comparison of current events to the 30,000 people who were disappeared in Argentina 40 years ago was completely off base. He ruled that Oregon did not have standing to seek a restraining order to prevent widespread 4th Amendment abuses in the future based on a record of just two incidents.
He also found not credible the state’s claim that it was injured because reports of random seizures by the feds might encourage counter-protesters to dress up like police officers and kidnap protesters. The state admitted it didn’t have a shred of evidence from anywhere, at any time, to support this theory, making it just wild speculation.
The state could have, but did not, show that all of the government’s seizures lacked probable cause - there have been dozens. Also, the state failed to produce any evidence that federal agencies had given their personnel standing orders to grab people at random off the street. The state had no evidence of any of this, and thus failed to establish these are widespread practices. Without widespread practices, the state had no standing to obtain the sweeping injunctive relief it sought for the future, the judge ruled.
So, Oregon gets an ‘A’ for creativity, but its wild legal theories didn’t pass the ‘laugh test’, as they say in the legal business. This was not a close question. Oregon had to know they didn’t have a legal leg to stand on. So the question becomes, why did they pursue it?
Discrimination: Fall-out begins from Supreme Court’s atrocious transgender / sexual orientation decision - ACLU sues to force Catholic hospital to perform transgender surgery; more implications for free speech, women’s athletics, parental rights to pass on their values, etc.
Emergency Powers: Supreme Court defers to public health authorities again, decides against churches a second time on COVID restrictions
1A: federal judge tosses prosecution for harassment emails sent to Mitch McConnell; rejects government’s argument speech was ‘integral to criminal conduct’
1A: Chinese student sues Fordham for barring him from campus for Instagram post implying gun ownership can prevent Tiananmen Square-style massacres
1A: Pro-Trump women’s group sues de Blasio over refusal to grant permission to paint a street mural; Mayor’s initial response - ‘Black Lives Matter transcends politics’
2A: “5,000 guns stolen in first week of June, alone. Still think background checks are going to keep guns out of criminal hands?” (h/t VCDL)
2A: “Who needs more than 10 shots? Female Cop Shoots at a Knife Attacker 14 Times” (h/t VCDL)
4A: “The Fourth Amendment does not require officers to knock and announce their presence before entering an open door.” (son left front door to defendant’s house open) (8th Circuit)
8A: Courts, not sheriffs, get to set conditions of release; sheriff can’t hold people after they make bail, or make up other conditions (7th Circuit)
Electoral College: federal appeals court upholds time-honored ‘winner-take-all’ system for South Carolina’s votes in Electoral College; declines to institute proportional results (4th Circuit)
Shame! Two women’s pro basketball teams walk off the court when the National Anthem is played. I suggest you relocate to the economic basket case of your choice - I hear Venezuela, Zimbabwe, and North Korea are nice this time of year. If you’re not willing to do that, then thank your lucky stars you live in America.
Kudos! Camp Constitution has record turn-out this year - congratulations!
Tonight, I talk about some constitutional implications of the lawless ‘autonomous zones’ we’ve seen this summer in Seattle, Portland, and elsewhere.
The people who think these zones are cute are missing the fundamental point - the zones set themselves beyond the law in a country that has, up to this point, prided itself on maintaining the Rule of Law. If not the U.S. Constitution or the laws of the states in which these zones are situated, then what law governs? The subjective whims of warlords toting assault rifles? That’s hardly ‘sustainable’ or ‘fair’, to borrow words from the Left. This certainly violates the spirit of the Supremacy Clause of Article VI making the U.S. Constitution and the laws of the United States the supreme law of the land.
A welcome sign at the Seattle autonomous zone said “You are now leaving the USA”. Didn’t we fight a Civil War when the southern states seceded from the Union? So some punks secede from the Union and the Mayor of Seattle eggs them on with impunity - how does that work?
Next, Article IV, Section 4 of the U.S. Constitution says the United States shall guarantee to every state a Republican form of government. When you start digging into the meaning of the word ‘republic’, it gets a little fuzzy, but there are two main components. First, representative government where officials are elected to represent the people. And second, a tradition of individual rights protecting individuals and political minorities from what our Founders called the tyranny of the majority. A pure democracy could vote to strip you of all your rights tomorrow and there wouldn’t be anything you could do about. This is why our Founders gave us a republic so we would have recourse against the will of the majority if it tried to trample our rights. I don’t recall in any of the coverage of the autonomous zones anything resembling elections or a Bill of Rights guaranteeing protesters free speech, freedom of religion and conscience, or any of the rest of the Bill of Rights.
Others have pointed additional constitutional problems with the whole exercise:
Local businesses have sued the city of Seattle for condoning the autonomous zone there and depriving the owners of their property rights and other constitutional rights.
The autonomous zone protesters in Seattle demanded retrials of all people of color serving sentences for crimes of violence. Because it leaves out whites, this would blatantly violate the Equal Protection Clause of the 14th Amendment.
Another demand is for juries to be composed of the same race as the defendant. The Supreme Court ruled a long time ago there is no right to a jury composed of your own race.
Protesters also want the courts abolished entirely. This would require tossing out the judicial powers in the U.S. and state constitutions, plus all the rights courts administer like the right against unreasonable search and seizure, the rights to confront your accusers and compel witnesses to appear on your behalf, and other trial rights.
I offer these thoughts not as a rigorous legal analysis of possible causes of action, but as commentary from someone who has studied political philosophy and constitutional law for decades and is concerned that not enough people recognize that these autonomous zones offend the philosophical underpinnings of our Constitution - concepts like the Rule of Law instead of Might Makes Right, limited government, separation of powers, and preventing the concentration of power in the hands of a tiny elite, especially when the self-appointed leaders of that elite have not been elected by anybody to do anything. I’ve studied the entire menu of political theories from the ancient Greeks on down and America’s Founders got it right - classical liberalism is the most coherent, humane, and stable governing theory ever devised. The U.S. Constitution and Declaration of Independence are classical liberal documents and are to be celebrated, not trashed.
The rioters show a profound ignorance of the Constitution and the classical liberal values supporting it. Part of the blame for this rests with public schools which have deliberately been trying to strip away America’s foundation for more than a generation. No wonder young protesters no longer understand their own country or what they are throwing away. But part of the blame also rests with everyone over the age of 18 who has not taken steps on their own to learn America’s founding principles or the system in which they are voting. Finally, a large part of the blame rests with the political Right - us - for sitting out for 50 years, letting it all happen, and not doing nearly enough to communicate the magnificence of the Founders’ ideals or why those ideals remain important today. Maybe if the couple in St. Louis had declared their yard an autonomous zone instead of just showing their guns, they would have gotten a lot more sympathy.
LGBT Face-Off with Religious Liberty: Adoption Agency Prevails Over New York on Marriage Views (Constitution news round-up)
Discrimination: Christian adoption agency beats New York in court; state tried to shut agency down for its beliefs on marriage; hostility to religion rationale prevailed (2nd Circuit) (LGBT rights v. religious liberty is the battleground today)
1A: Yes, conduct can be speech but this is ridiculous - “Protester claims lighting Molotov cocktail protected by First Amendment”
Free Expression: Amazon, Dems on Capitol Hill try to bury free speech documentary. #RiseOfTheAuthoritarianLeft
Free Expression: Cornell law prof faces coordinated campaign to get him fired for daring to criticize Black Lives Matter; supporters afraid to speak up
Free Expression: Fordham bars Chinese-American student from campus, demands he be re-educated after he holds gun in Instagram photo about the Tiananmen Square massacre
State Constitution: Michigan Supreme Court rules seizure of entire value of a property to collect $8.41 in delinquent property taxes is an unconstitutional taking calling for just compensation
14A: prisoners have a protected liberty interest in not being kept in solitary confinement for 4 years (4th Circuit)
Slides and videos available from law professor’s Constitutional Law class
Print your own Constitution booklet at home for free
The Citadel military college in South Carolina (unlike other schools in the state) will follow state law and require all cadets to study the Constitution
I’ve said many times on these webinars that the rise of the authoritarian Left is the central challenge of our time. We saw it when they rammed Obamacare down our throats and again most recently in the riots and autonomous zones this summer. We’ve also seen it in recent years in the Left’s efforts to shut down speaking engagements by Ben Shapiro, Heather Mac Donald, and numerous other figures on the political Right.
I’ve written a manual to help individuals and groups on the political Right fight back when cancel culture comes knocking at their door. The manual is dedicated to the memory of Phil Haney who gave me an interview on the subject shortly before he died.
The manual starts with a cancelled event from April 2019 when ACT for America founder Brigitte Gabriel was scheduled to speak at Cross Creek Community Church in Wilkes-Barre, Pennsylvania. The executive director of the local Chamber of Commerce posted the event on the Chamber’s public online calendar. When he received an email indicating the event might be controversial, the executive director (who was also the local ACT chapter leader), took the event off the calendar. The pastor of the church previously did not know what ACT for America was all about and began looking into it for the very first time. He withdrew his approval to hold the event at his church. Subsequently, the Chamber executive director resigned from ACT.
This story is a good example of what NOT to do. It shows a failure to plan and to vet the venue. Everyone involved lacked situational awareness. This was stupid; they were asking to get clobbered. The venue and the sponsor folded like a cheap tent at the first sign of controversy. This didn’t have to happen.
The theme of the manual is ‘plan ahead’. Choose your venues wisely and vet your sponsors for their ability to resist pressure campaigns. Require registration or, if necessary, structure the event to increase the chances of success, perhaps as a private event with the location disclosed only at the last minute, or as a debate with all sides represented and agreeing there will be no disruptions. Have your security plan in place. Be ready with Plan B - an alternate location or a secret room for livestreaming. If it’s a campus, review the school’s policies on free speech and controversial events and, more importantly, the school’s actual track record on enforcing those policies. Some schools are better than others when it comes to enforcement.
Be ready to respond to pressure campaigns from advocacy groups like CAIR or Black Lives Matter, from local politicians, and from unfriendly media. Be ready to mount your own pressure campaign by lining up supporters, friendly media, and politicians ahead of time.
Be ready to respond to the down-the-rabbit-hole arguments of the Left like ‘your speech is violence, you have no right to speak’ or this beauty that came up at a cancelled event at Williams College:
This kind of craziness shows you the authoritarian Left not only doesn’t care about free speech; it’s overtly hostile to First Amendment values. The Left wants to shut you up and believes it is within inches of finishing off the political Right once and for all. So the stakes are very high. Unless the Right gets better at neutralizing cancel culture, you can say goodbye to your free speech and to any kind of America you would want to call home. The manual is my modest contribution to preventing this from happening. It’s free for the asking to my friends on the political Right.
1A: Supreme Court rules government cannot interfere with teacher hiring decisions in religious schools
Electoral College: Supreme Court shoots down ‘faithless electors’, rules states can force electors to follow popular vote (this will cut both ways)
14A Fundamental Rights: Supreme Court breathes new life into Indiana abortion ultrasound law, paving the way for arguments on constitutionality
1A: Supreme Court turns away challenges to state speech curbs around abortion clinics
1A: Judicial Watch sues D.C. over Black Lives Matter street mural; if the streets are now a public forum, all viewpoints must be allowed
Free Expression: “Letter signed by J.K. Rowling, Noam Chomsky warning of stifled free speech draws mixed reviews”
Free Expression: Multiple leftist groups gang up to try to get Young Conservatives booted from Texas campus
Free Expression: Multiple leftist groups gang up to demand UPitt fire any employee they say is racist
Free Expression: Harvard prof in the cross-hairs for research on police shootings
2A: GOP lawmakers ask Justice Department to defend St. Louis couple whose guns were confiscated after defending their home against protesters
State Constitutions: Virginia judge rules 18-to-20-year-olds have a right to buy handguns
14A: shackling the defendant in front of the jury undermines the presumption of innocence (6th Circuit)
Discrimination: California court allows challenge to state corporate board gender quotas to go forward
Dormant Commerce Clause - California’s ban on foie gras comes tumbling down
Economic Freedom - new Florida law repeals or relaxes occupational license restrictions for 30 trades including hair braiders and interior designers (momentous; there has never been such a wholesale retraction)
Survey: liberals want to rewrite Constitution to impose race quotas to control the history you are taught, the art you are allowed to see, etc. Give Me Diversity or Give Me Death!
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