Tea Partiers are accustomed to tracing the ideas undergirding the Constitution back to Montesquieu and Locke, but a new book - America on Trial: A Defense of the Founding, by Robert Reilly [reviewed here] - shows that the Founders’ animating ideas go all the way back to antiquity. The book does a deep dive into the fundamental dispute between reason and will, and shows how reason was embodied, and will rejected, in America’s founding. The book goes on to explain why this unending philosophical tussle is still important today. But before we get to the importance of it all, let’s take a quick trip through the history of ideas.
Reilly frames the central question in this philosophical tug-of-war thusly:
The thinking about reason comes down through Aristotle, Cicero, and others until we get to John Locke who is associated with such ideas in America’s founding as universal truth, natural law and rights, popular sovereignty, consent of the governed, the rule of law, political equality, and individual liberty.
The thinking about will was developed by Machiavelli, Hobbes, and others, and forms the basis for political absolutism. It believes human beings do not act out of principle but out of the will to power, the egotistic need to control everybody and everything. One culmination in this line of thinking was Hitler, who was all about the triumph of the will.
Reilly refers to the Lincoln-Douglas debates as illustrating the difference between the two competing philosophies. Lincoln argued slavery is intrinsically evil on principle and could not rightfully be voted in by a majority of the states, as Douglas maintained. Democracy without moral limits is simply the tyranny of the majority, Lincoln argued.
Why is all this important today? First, because the Progressives have been making steady progress and rewriting our constitutional ideas for a hundred years. This is bad because Progressivism, at root, is concerned with the supposedly preordained unfolding of history in accordance with the Progressive vision, not moral principles, and anything goes to get Progressives to their goal. The Progressive’s will to power conjures up rights willy-nilly to abortion, same-sex marriage, and other artifices to gather votes and gain power, to the detriment of religious liberty, freedom of association, freedom of speech, and other benefits of America’s founding. The Progressives have become authoritarian and illiberal. They can only get to where they want to go, now, by trampling on the rights of others. How long will churches that believe in traditional marriage be able to hang on to their tax exemptions? Or, to give another example, transgender speech codes are all about cracking your head until you think right, your moral principles and conclusion based in reason there are only two biological sexes be damned.
Second, there is a split within conservatism with some conservatives now blaming the Constitution and its elevation of individualism for all of modern society’s ills. They believe the old individualistic exploitative order has to be torn down and replaced with “better truths”, whatever that means - no one quite seems to know. Justice Anthony Kennedy is the poster boy for this school of thought, writing in one of his opinions that the “heart of liberty” for every American “is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Justice Scalia mocked this as Kennedy’s “sweet-mystery-of-life passage” - post-modern gibberish. Reading Reilly’s book will better equip you to resist the illiberal conservative communitarians who have grown up in our midst.
Finally, Reilly posits that only reason, not will, can make individuals capable of the morally demanding requirements of living in freedom. If we are to govern ourselves and flourish, we need a solid grounding in virtue to succeed - something more than ‘if it feels good, do it.’ As the Founders observed, only a moral people is capable of living in freedom. The Constitution they wrote is for a moral people only and, as they told us, is quite inadequate for any other. To put it another way, there is only virtue or there is destruction. Destruction is what you will get if you choose will and ‘if it feels good, do it’ over reason and principle. If we don’t deserve a republic, we won’t have one for very long.
Activists Force College to Apologize to Besieged Professor Who Presented True Facts about Violent Islam (Constitution news round-up)
1A: Success! Arizona community college apologizes, after activists fire back, for threatening professor who asked test questions highlighting the violent nature of Islam
1A,5A: ‘Occupy’ protesters lose big-time; Second Circuit upholds dismissal of false arrest and other claims arising from 2011 NYC protest
2A: challenge to Florida ban on gun sales to 18-21 year-olds survives motion to dismiss
Amendment: Trump administration files motion to dismiss Dem state attorneys general suit to recognize ratification of the Equal Rights Amendment
1A: “Supreme Court Weighs Whether Parochial Schools Are Exempt From Fair Employment Laws”
2A: Tenth Circuit preliminarily upholds Trump regulation banning bump stocks as machine guns
4A: Ninth Circuit upholds warrantless search of license plate database against man whose rental car was overdue
Two weeks ago [Constitution Minute, 4/19/20], I summarized several court challenges to state pandemic emergency orders around the country. There’s been a whole raft of litigation since then. It’s impossible to keep track of all of it but, tonight, we’ll take a closer look at the legal standards at issue in some of the recent challenges.
Yes, the states have broad emergency powers, but the Constitution is not suspended. Emergency powers are not unlimited. Constitutional protections must be observed. The government must have valid reasons to use health emergency powers in the first place - it can’t act arbitrarily; the health measures imposed must be reasonably designed to achieve health objectives; the benefit must outweigh the burdens placed on people; and authorities must avoid harming people in the process. Those are the legal standards; now let’s apply them to some of the cases that have arisen in the last two weeks.
The government can’t act arbitrarily. California Governor Gavin Newsom ordered the beaches closed in Orange County based on some news photos, but he didn’t close any other beaches in the state. The Huntington Beach city council voted to sue arguing, among other things, the Governor acted arbitrarily in singling out one stretch of shoreline in the entire state for closure, but not other beaches. The mayor of Newport Beach additionally argues L.A. County closed its beaches a month ago and “every single Los Angeles County beach community has a higher per capita COVID infection rate than Orange County’s open beach communities.” The Governor’s order singling out Orange County sounds pretty arbitrary to me.
Second, the governmental interest in exercising emergency powers must outweigh the liberty interests at stake. This is basic due process analysis. A judge in Virginia opened one gun range in the state following this analysis. The judge ruled that citizens’ Second Amendment rights outweigh the state’s interest in protecting health on the facts presented. In Michigan, the Governor settled a case with a legal foundation by trimming back her emergency orders. The foundation vindicated the rights of Michigan residents to travel to their summer homes, reopen their landscaping businesses, and use their boats for fishing, among other things. The foundation had argued the Governor’s orders had trampled on several fundamental rights for no good reason.
Third, the health measures must be reasonably calculated to achieve a health objective. It’s hard to see the health objective in ordering people not to attend drive-in church services where they don’t get out of their cars. A town in Mississippi lifted its ban on drive-in church services after it got sued. The U.S. Justice Department intervened in the case, saying the town could not single out churches when allowing other drive-in establishments, like drive-in restaurants, to stay open. In Kansas, a federal court blocked the state from limiting attendance at church services to 10 people. Congregations must still observe social distancing rules under the court’s decision, but those rules cannot be applied more strictly inside churches than elsewhere, the court said.
In New Mexico, however, a federal court ruled the opposite way, upholding the state’s ban on gatherings of more than five people in places of worship. The court rejected challenges based on the First Amendment rights of assembly and free exercise of religion. The judge said the social distancing ordered by the state was not good enough because death rates were still going up despite social distancing. That bears repeating: the state’s social distancing order was not good enough for this judge. Talk about legislating from the bench, wow! Besides, churches have alternatives - drive-in services and broadcasting over TV and the Internet, the judge ruled.
To sum up, states have emergency powers, but the Constitution is still in effect, and the question in all these cases is, in one way or another, whether government has overreached. Law is the adjustment of competing values and interests and all of that strikes different judges in different ways, as the COVID cases show. But, at some point, even the most hard-core authoritarians among us will have to admit that the burdens and harms of continued lockdowns outweigh the health benefits to be gained. Like the scales of justice show, it’s a matter of balance.
1A Religion: 6th Circuit prevents Kentucky from enforcing social distancing rules against drive-in church service - “While the law may take periodic naps during a pandemic, we will not let it sleep through one.”
1A Religion: Supreme Court hears arguments on Trump administration rule in Little Sisters of the Poor contraception mandate case; decision expected in the summer
1A Religion: transgender case against Masterpiece cake baker Jack Phillips survives motion to dismiss
Discrimination: U.S. Women’s National Soccer Team loses wage discrimination suit when the facts inconveniently showed they actually got paid MORE than their male counterparts during the time in question
1A,5A: “Education Secretary Betsy DeVos Issues New Title IX Rules To Protect Free Speech, Due Process for Accused Students”
Separation of Powers: Trump administration loses another sanctuary city grants case; the executive cannot place conditions on a grant if Congress did not give authority
2A: Supreme Court dismisses New York gun rights case as moot; the laws in question restricting the transport of guns were changed
2A: federal judge temporarily blocks California’s deliberately burdensome ammunition background checks
2A: COVID order puts outrageous Maryland case back in the spotlight - police shoot sleeping man through his window in unprovoked attack; allege he possessed firearms despite juvenile conviction, but can’t produce the case
Emergency Powers - Attorney General William Barr warns states the Constitution is not suspended in times of crisis and not to overreach in their emergency pandemic measures
Due Process: Sixth Circuit makes up a ‘constitutional right to literacy’ (i.e., ‘a state-funded education of a certain quality’)
14A: 10th Circuit rules Kansas proof-of-citizenship law unduly burdens right to vote
14A: 8th Circuit upholds Iowa law requiring certificate of need from proposed new surgery centers but not from existing centers or hospitals
Discrimination: Muslim high school teacher in New Jersey was rightly fired for his anti-Semitic views ("Jews are Like a Cancer" and "U.S. Planned, Carried Out 9/11"), personal slurs notwithstanding (3rd Circuit)
Due Process: Judge starts discrimination trial with a dog-and-pony show about great civil rights leaders in history and ‘bending the moral arc of the universe’; California appellate court reverses, citing lack of an impartial tribunal
21A,Commerce Clause: 6th Circuit upholds Michigan law allowing in-state but not out-of-state alcohol retailers from shipping directly to consumers
Electoral College: National Popular Vote supporters assume the two-party system would continue unaffected, but NPV would splinter system into numerous special-interest parties
New book: “Free Speech and Liberal Education: A Plea for Intellectual Diversity and Tolerance” - ranges from cancelled events to academic freedom and beyond; discusses the classical liberal view v. social justice, progressive bullying, and censorship.
Yo, Progs! When was your “living, breathing Constitution” ratified? When did We the People consent to living under your silly little subjective standards?
Recently, President Trump threatened to adjourn Congress in order to make recess appointments to fill vacant posts in his administration, citing constitutional chapter and verse as authority to do so. While there have been plenty of recess appointments in our history, no President has ever actually adjourned Congress before to make them. Not surprisingly, legal scholars disagree about the constitutionality of the President’s threatened course of action. Two constitutional provisions and a Supreme Court case are at issue.
First, Article II, Section 3 gives the President the power to adjourn Congress for as long as the President wants if the two Houses of Congress disagree “with respect to the Time of Adjournment”. So if the Senate adjourns and the House votes to disagree, or fails to vote at all, the President can adjourn Congress. That may sound open and shut, but it’s not.
We have to look at Article I, Section 5 which effectively says either chamber can adjourn for up to three days without consent of the other during a session of Congress. Any longer than three days, during a session of Congress, and the other chamber must consent.
So what’s to prevent Senate Majority Leader Mitch McConnell from adjourning the Senate for eight days, Speaker of the House Nancy Pelosi refusing to consent, and President Trump adjourning both houses of Congress for eight days under Article II, Section 3 in order to fill the roughly 250 vacancies in his administration for which the Senate has not given its advice and consent?
The answer is: The Supreme Court, that’s what. In a 2014 case [NLRB v. Noel Canning], the Supreme Court started by saying, “The Recess Appointments Clause empowers the President to fill any existing vacancy during any recess—intra-session or inter-session—of sufficient length.” What is “sufficient length”? Therein lies the rub. A three-day recess was at issue in the case, and the Court could find no “single example of a recess appointment made during an intra-session recess that was shorter than 10 days.” Absent “unusual circumstances” like a national catastrophe, a three-day intra-session recess is too short for a President to invoke the Recess Appointments Clause, the Court ruled. Justice Scalia wrote a separate opinion, unsuccessfully arguing the President’s need to fill a particular slot can be just as urgent as a national catastrophe.
So, once again, we see a Supreme Court that has gone beyond the text of the Constitution, filled in some blank spaces with whatever formula struck its fancy that day, and achieved a result that is not required by the plain language of our founding documents. The formula that day was historical practice - no recess appointment has ever been made in our history during an intra-session recess shorter than 10 days. But the Court doesn’t always like history. A lack of history didn’t prevent the Court from making up fundamental rights to abortion and gay marriage, did it? It’s called results-oriented jurisprudence - pick the result you want, then pick the formula that will get you there. History one day, public opinion polls the next.
Hate to break it to you, folks, but there’s entropy in the law, and the result is that duly elected officials have their hands tied by the courts more than they should, and your vote doesn’t mean as much as it should, because unelected people in black robes like to make stuff up and overstep their role.
Two months ago [Constitution Minute - Feb. 23, 2020], I told you about the emergency powers states have to deal with pandemics. Subsequently, I went on the radio and said that, if Americans really feel governments have trampled on their rights, they should sue in court. Tonight, we’ll take a quick trip through some of the court cases where Americans fighting for their rights have done exactly that. Some have been successful and some have not.
But, first, a refresher. States have broad powers in emergencies to protect the health, safety, and general welfare of their inhabitants. However, those powers are not unlimited. Constitutional protections must be observed. The government must have valid reasons to use health emergency powers in the first place - it can’t act arbitrarily; the health measures imposed must be reasonably designed to achieve health objectives; the benefit must outweigh the burdens placed on people; and authorities must avoid harming people in the process.
Several court challenges went down in flames in Pennsylvania. The state’s Supreme Court rejected eminent domain, due process, equal protection, and First Amendment free speech and rights of assembly challenges to business closures and other emergency measures. The court said the closures are an appropriate use of emergency powers and are only temporary. Businesses get a post-closure hearing to challenge designations as non-essential and that is enough for due process. Political campaigns have other ways to get the word out, even if their offices must stay closed during the pandemic.
Texas lost its bid to completely close abortion clinics as non-essential for the duration. A federal appeals court ruled the clinics must be allowed to stay open to dispense abortion pills and provide abortions to women who would otherwise be too far along for abortions when the state’s emergency order expires. Sounds like the court decided to cut this baby in half - literally.
Church-goers lost their challenge against the state’s order limiting the size of church gatherings on Easter Sunday to ten people in Kansas.
A number of other court cases have been filed or threatened, but I haven’t seen rulings yet. A Wisconsin teen sued a local sheriff for denying her free speech rights by threatening to arrest her for disorderly conduct for an Instagram post where she claimed she had beaten COVID-19. Her doctors told her it was likely she had the virus and she had tested negative because she missed the testing window.
Michigan residents filed suit against the stay-at-home order issued by Governor Gretchen Whitmer, whom Trump calls ‘that woman from Michigan’. The Governor was also sued for criminalizing the free speech activity of peaceful, pro-life protestors. A legal group called on the Governor to lift her ban on homeschooling. It looks like faulty drafting, but the executive order bans all in-person instruction of all children outside of public schools, which are closed. Parents have a fundamental constitutional right to raise and educate their children, the group said.
Citizens in Massachusetts are suing over that state’s designation of gun shops as non-essential. A gun rights group in Virginia sued over Governor Infanticide’s closing of indoor gun ranges as non-essential. A constitutional law professor at the University of Virginia doubts this challenge will succeed. “Closing gun ranges doesn’t violate anyone’s right to own a weapon,” he said. “It’s a reasonable regulation in the space of a major public health crisis.” VCDL, the gun rights group, counters that the gun ranges allow people to sharpen their skills, and observe appropriate social distancing because there are barriers between lanes.
Which brings us to Mike Huckabee, who sued in federal court in Florida against a county social distancing order that closed his private beach. He argues this is a taking of his property in violation of the 5th Amendment and points out there is less chance of transmitting coronavirus on a private beach than there is going to the grocery store. The measure, as applied to private beaches, doesn’t appear calculated to achieve a health objective, a legal standard I mentioned at the outset.
The sheriffs have been interesting to watch in all of this. Four sheriffs in Michigan said they would not strictly enforce the stay-at-home order. A sheriff refused to enforce orders fining COVID carriers who enter Maine from out of state. “This is not Nazi Germany or Soviet Russia where you are asked for your papers!,” he wrote. Sheriffs in Los Angeles and North Carolina allowed gun stores to reopen after being sued.
I’ll close with my favorite ruling, this one out of Kentucky where a federal judge ruled the mayor of Louisville could not ban Easter drive-in church services. “On Holy Thursday, an American mayor criminalized the communal celebration of Easter,” the judge wrote. “That sentence is one that this Court never expected to see outside the pages of a dystopian novel, or perhaps the pages of The Onion.” The mayor had argued that drive-in church services weren’t “practical or safe” for the community. However, the judge noted that drive-thru restaurants and liquor stores were still allowed to operate. Senator Rand Paul tweeted, “Thank God for a judge who understands the First Amendment prevents the government from prohibiting the free exercise [sic] of religion.”
Art II, Sec 3: Can a President force Congress to recess? Yes / No
6A: Supreme Court requires unanimous jury verdicts for serious offenses in state prosecutions
4A: Michigan judge allows police to arrest and jail anyone suspected of coronavirus; order has blank line to fill in the person’s name. Sure looks like an unconstitutional General Warrant.
1A Religion: New York appeals court rules a father cannot be compelled to conform to Hasidic Jewish norms during visitation with children
1A Religion: “So help me God” in naturalization oath is not unconstitutional (1st Circuit)
1A Religion: banning atheist group’s display at Texas state capitol showing Founders around a manger containing the Bill of Rights likely unconstitutional (5th Circuit)
6A: 6th Circuit orders new trial in Michigan murder conviction because witness who said the defendant pawned a ring belonging to the victim died before testimony and cross-examination (Confrontation Clause)
1A: Janus does not apply to a private organization funded by taxes and made up of municipal officials; their speech is ‘government speech’ (7th Circuit)
1A: Mississippi appeals court overturns conviction and 5-year sentence, strikes down underlying statute, in case of Facebook post accusing pastor of sexual misconduct
1A: two high school seniors expelled and won’t be allowed to graduate for off-campus racially disparaging video using the n-word (yes, this is disgusting, but it is protected speech)
Free Expression: police department orders officers to start using preferred transgender pronouns (maybe justifiable on the job, but will discipline follow free expression off the job?)
2A: pandemic-panicked gun-buying libs get angry when encountering their own gun control laws
4A: limited use of automated license-plate readers does not on the facts presented constitute a ‘search’ under the Fourth Amendment
“To conclude that the general welfare clause authorizes endless transfers among various groups and individuals is literally to turn the Constitution upside down.” (Richard Epstein)
Shame! Black activist does not believe in the inherent goodness of America - “I am too black for that”. This is an insult to every black who is glad they live in America, the greatest country the world has ever known. (h/t Dennis Prager)
Kudos! to the 11-year-old boy who plays the Star-Spangled Banner on his trumpet every evening to cheer his neighbors during the pandemic. #InherentGoodness
States Must Be Even-Handed Towards Religion in Coronavirus Restrictions (Constitution news round-up)
1A Free Exercise: Federal judge rules Louisville cannot ban Easter drive-in church service
1A Religion: HUD contractor seizing Bibles from public housing in defiance of Constitution and HUD rules
1A,5A,14A: Pennsylvania Supreme Court rejects takings, due process, equal protection, speech, and assembly rights challenges to state’s COVID-19 restrictions
Trump says Apple/Google contact tracing technology for coronavirus raises “constitutional problems”. Probably not. Contact tracing has been used for many years for many diseases.
Chinese company claims 95% accuracy in facial recognition software for people wearing masks
Shame! Governor Newsom keeps calling California a ‘nation-state’. Well, then I guess he doesn’t’ need our tax money.
There’s nothing quite like the pretzel logic of the Left. Take the kernel of a good idea - the equal protection clause of the 14th Amendment - and twist it into something completely unrecognizable and monstrous. Thus we arrive at the Labor Department’s Office of Federal Contract Compliance Programs (OFCCP) which often takes enforcement actions against the same employer for discriminating against both men and women, or against and in favor of Asians. Wow, that’s some pretzel.
Not only that, OFCCP is judge, jury, and executioner in flagrant violation of separation of powers principles laid down by our Founders in the U.S. Constitution. OFCCP investigates, prosecutes, and judges cases entirely in-house.
Equal protection has gone off the rails, thanks to disparate impact theory, a numbers game that purports to find discrimination purely on the basis of statistics, that is, unequal outcomes across various demographic groups. No actual evidence of discriminatory intent is required. Intent is simply proclaimed if men are paid more than women regardless of other factors, or if Asians are hired in greater numbers than their percentage of the population.
OFCCP brought a complaint against Oracle alleging pay discrimination against female, black and Asian employees, then demanded 85 million datasets from Oracle in discovery in the case. OFCCP is notorious for other abusive practices, such as refusing to show the contractors it sues its statistical findings or even its methodology. OFCCP’s analysis is simplistic, for example, treating all employees with the job title ‘software engineer’ alike even though the work of a software engineer assigned to databases is doing very different work from one who is developing artificial intelligence. OFCCP’s simple-minded theory also disregards education, experience, personal job choices, the number of hours worked, and flexible work schedules in its quest to level the workplace and make everyone equal.
Oracle has counter-claimed, arguing the separation of powers issue, among other things. There is also a Due Process issue with having a self-interested tribunal that is not impartial or neutral. It’s a constitutional problem if you make the decision or set the punishment in a case your colleagues brought in the first place.
The complaint against Oracle was brought two days before President Trump was inaugurated, but continues under his administration. The Trump administration has talked about shutting down OFCCP and transferring its functions to the EEOC. The administration also proposed, over a year ago, to uproot disparate impact theory from all federal agency adjudication, but the proposal doesn’t seem to have gone anywhere.
But it should. As I wrote in a Constitution Minute in March 2019, disparate impact theory is a concoction of left-wing bureaucrats that “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.”
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