Thursday, January 17, 2019

Restoring the Constitution: Afflict Liberals with New Deal Precedent (Part II)

In Berman v. Parker (1954) the Court held that cities can condemn property in poor neighborhoods to refurbish “blighted” communities. In essence, Berman allows for the lawful taking of property from the poor which is, in turn, given to wealthy land developers. The poor also loses because their “just compensation” is extremely low for depressed lands and therefore the compensation is inadequate for the poor to find a new home in a decent community. In essence, Berman is a significant cause for homelessness. In Kelo v. New London (2005) the Court held that taking private property for private purposes is permissible if the takings would result in a public benefit such as more jobs and more tax revenue. Hence, the Court changed the meaning of the Takings Clause from “public use” to “public benefit”. Kelo is dangerous precedent because no one is safe from these types of takings: local governments can simply condemn your home and give the property to a land development company that will benefit the public with more jobs and tax revenue. Governments even use regulatory takings to take private property without just compensation. In Penn Central Transportation v. New York (1978) the Court held that a regulation making Grand Central Station a Historic Landmark that denied Penn Central from building on property they own was not only constitutional, but New York did not have to compensate Penn Central. In Tahoe-Sierra Council v. Tahoe Reginal Planning Agency (2002) the Court held that temporary takings through regulation was constitutional. In Tahoe-Sierra the Court held that regulations preventing property owners from building on their land for 20 years was not only acceptable, it can be done without just compensation. So, what is the solution? Maybe it is time for local governments to condemn liberal neighborhoods so they can build a Walmart, Target, and other national chain stores to generate jobs and more tax revenue? Or maybe the EPA can generate regulations placing a moratorium on home owners from obtaining building permits for 20 years in cities like Chicago, New York, San Francisco, Los Angeles, Boston, and other liberal cities. The EPA can make up some phony excuse claiming they are merely trying to prevent excessive emissions in densely populated areas. If this were to happen, liberals would be up in arms, and they may try to overturn Kelo, Berman, Tahoe-Sierra, and Penn Central and restore the Takings Clause in the Fifth Amendment. After all, targeting liberals is no different than when liberals targeted conservatives in the Obama administration (IRS and Journalists). The bottom line, if privacy is protected within the home, then shouldn’t the home and private property be protected from at least takings for private reasons as prescribed in our Constitution?

In the line of cases University of California v. Bakke (1978) and Grutter v. Bollinger (2003) the Court held that race may be used as a “plus factor” when considering diversity for admission into schools or for jobs. The Court held that using race as a quota system was unconstitutional, but using race as a determinate for admission is not much different than a quota system. They are both discriminatory. In Plessy v. Fergusson (1896) the Court held the separate but equal doctrine was constitutional. Hence, the era of racial segregation was born. In his Plessy dissent, Justice John Marshall Harlan said the Constitution was “color-blind”. But the Bakke and Bollinger cases illustrate that race “matters” as Justice Sotomayor continually reminds us in her misguided opinions. If race matters, then maybe Tanny’s ruling in Dred Scott was correct? Essentially, Bakke and Bollinger are an attempt to overcome past injustices against African-Americans. But when do we finally put an end to racial discrimination because Bakke and Bollinger are no better decisions than Dred Scott? All these opinions discriminate. Consider how the Michigan Law School in Bollinger bypassed more qualified Hispanics and Native Americans in favor of African-Americans who had lower grades and test scores. Therefore, Bollinger was discriminatory against all races at the expense of African-Americans (In other words, the Michigan Law School was not trying help minorities or women, but only blacks). Regardless, discrimination is discrimination and the Constitution does not permit it. What if conservatives pushed for “equal protection” and diversity for admissions into schools and jobs for individuals with conservative political affiliations. We know that liberals dominate positions within the public-school system: teachers and administrators. I doubt liberals will like conservatives using University of California v. Bakke and Grutter v. Bollinger precedent to uphold equal protection so more conservatives can land public teaching and administration jobs. This would counter the liberal brainwashing power in the educational process on our youth. After all, there is no difference in discriminating using race or gender and discriminating using political affiliation. The Constitution is not only color-blind, but it also does not know any political ideology or socio-economic status. But liberals cannot merely pick and choose which types of discrimination are acceptable and which forms are not. The 1961 case Anastaplo is further proof that the Court can discriminate based on political ideology. The details of this case are discussed later in this blog.

Saturday, January 12, 2019

Is Building the Border Wall a Moral Issue?

When Alexandria Ocasio-Cortez said “Facts don’t matter when you are morally right” she is practicing both social and moral justice to tax the wealthy at a 70% federal rate. Both the Right and Left are guilty of using moral and social justice throughout American history. For instance, conservatives would use moral justice to ban alcohol, gay sex, marijuana, sex toys, pornography, gay marriage, and masturbation to name a few issues. Liberals would use moral justice to defend climate change, higher taxes, takings without compensation, illegal aliens (building the wall is now a moral issue), entitlements, diversity, and affirmative action to name a few issues.

Anything that violates the rights of any American, regardless of morality, is against any true meaning of the Constitution to protect everyone equally. Individuals can violate their own rights and morality code so long as their actions affect no one else. For instance, using alcohol, sex toys, or masturbation hurts no one and violate no one rights when done in private and with consent. Morality and social justice are just excuses to persecute the minority in favor of what the majority wants. What does the majority want? More money and entitlements at the expense of their neighbors. But nothing in the Natural Law (morality) or the Constitution permit taking money from a private citizen and giving it to another private citizen. The Fifth Amendment Takings clause permits taking property from private citizens for public use, not private use.

Is abortion morally right, regardless of the facts? According to Natural Law it is the job of citizens to protect the rights of the unborn. This concept plays into the hands of liberals who want to “save” the planet from climate change or conservatives who want to pay down our debt. These are both moral concepts but they conflict: We cannot save the planet by bankrupting future generations. Just because something is morally right, it does not mean government should tax people beyond reproach. This would make taxing for climate change morally wrong. Besides, the government always wants to spend money to solve a problem and very rarely do they want to try innovative means to solve a problem without putting everyone in debt. Socialists like Ocasio-Cortez and Bernie Sanders are the worst. They want to take other people’s money but they will go all out to protect their own wealth. And when it comes to money, there is never enough. As fast as Democrats would implement a 70% tax on the wealthy, they would seek to increase that rate.

Morality is about individuals making the right choice. It is not about the government making what it perceives as the right choice, especially at the expense of others. Morality is not about being concerned what our neighbors are doing, it is being concerned about what we are doing. If people follow morality codes then they will help neighbors in need without government intrusion. Government interference turns welfare into a Right and Left argument, creates expensive lobbying, creates class warfare, and uses the power, interest, and partiality principles which will violate the rights of many.

Think about this, if welfare is a human right then government interference is a violation of that right. Take the government run Veterans Affairs (VA). How many veteran’s rights were violated by government intrusion into their healthcare? If government is making welfare more expensive, cannot properly protect the identity of citizens, generates a monopoly preventing citizens from opening businesses in medical fields, or generates mandates, rules, and regulations that help some but hurt others then they are violating the rights of citizens. A one-size fits all government run welfare program will violate the rights of some while benefiting others. This is wrong. Besides, what people like Ocasio-Cortez fail to realize that there is a big difference between taxing income and wealth. And she certainly does not understand basic economics and the Laffer effect on the economy. Remember, Venezuela, Iran, North Korea, and Russia do not care about facts either and look at the status of their socialized countries.

It is not the job of Congress to implement the will of the constituents that support them. No, it is the job of Congress to protect the rights of ALL citizens. It is time to stop moral and social justice and it is time to protect the rights of all citizens by practicing the Natural Law principle of subsidiarity: To allow local governments and communities help their neighbors.

There is nothing moral about violating the rights of some at the expense of others. Morality is part of Natural Law. The Right and Left only defend Natural Law when it is convenient. Natural Law is the science of reason. This means humans must make free-will decisions based on reason without emotion and feelings. And when reasonable free-will choices conflict, it is then up to humans to choose the more moral choice. Right now, most government decisions are not rational, hence there is no moral choice. For instance, diversity, affirmative action, and protecting preferred classes of citizens is no different than the jurisprudence that led to many of the worst decisions in SCOTUS history: Dred Scott (Slavery), Plesy (Segregation), Buck (Sterilization), and Korematsu (Internment). These are not rational choices and therefore they cannot be moral.

Ocasio-Cortez is wrong that morality does not include facts. I may have an opinion that tattoos and sex toys are immoral. But opinions are not facts backed up by reason. First, tattoos and sex toys do not harm others and therefore violate no one’s rights (if sex toys are used in private and with consent). Second, think of how shutting down sex and tattoo stores will harm the owners of those shops by violating their right to work. Hence, a reasonable decision for me is to say I do not like tattoos and sex toys, but they are not necessarily immoral. Strict Natural Law theorists may dispute this, but in my reasonable opinion there must be harm for something to be classified as immoral. Hence, to come to a moral decision, facts are necessary without emotional rhetoric.

So, what would be a rational decision for the Wall? I tend to favor border security over no security to protect American citizens from having their rights violated. But nothing is ever black and white anymore and people can certainly empathize with those who struggle in other countries. But thinking that way is using emotion and feelings. The law and morality are not about emotion and feelings. And let’s not forget any illegal alien who dilutes the vote of a citizen, takes a job that would otherwise go to a citizen, fails to pay taxes, takes entitlements, or commits a crime is violating the rights of some if not all American citizens.

Maybe we can build a wall and have boarder security for States that may want it like Arizona and Texas. States like California and New Mexico can have open boarders but they will be held liable for any instance of a violation against the rights of an American Citizen for any future boarder crossings. Maybe States can decide if they want illegal aliens residing or travelling through their borders. After all, there must be restitution for a violation of rights. This is probably not a good compromise, but it is the only one I can think of using Natural Law and morality. Sure, it seems morally correct and decent to allow every starving and disenfranchised person around the globe to enter our country. But is this reasonable? No, because it is cost prohibitive and at the same time, we have millions of citizens in this country suffering. Since it is not reasonable, it is not moral.

Monday, January 7, 2019

Restoring the Constitution: Afflict Liberals with New Deal Precedent (Part I)

Since the progressive New Deal Court expanded the powers of government to be infinite, maybe it is time to use much of this precedent to afflict ill will on liberals. Do not get me wrong, I normally do not wish ill will on anyone. But until the Left feels the impact of their “living Constitutional” rulings, nothing will be done to correct these egregious injustices. Actually, some Constitutional corrections have already started to happen. For instance, in Wickard v. Filburn (1941), the progressive Court expanded the meaning of the commerce clause to cover just about anything. However, recent decisions in Lopez v. United States, Morrison v. United States, and Bond v. United States the Court restricted the commerce clause to cover only things that are economic in nature. The modern Court also used Wickard v. Filburn to attack a topic close to liberal’s hearts: medical marijuana. In Raich v. Gonzales (2005) the Court held that persons in California could not grow small amounts medical marijuana to overcome bodily pain caused by various medical disorders (even when prescribed by a doctor). Raich, was actually an outcome where the conservative sect of the Court incorrectly applied moral standards over personal rights. After all, shouldn’t the “pursuit of happiness” mean for persons to find ways to avoid pain? Of course, Filburn and Raich could be further used to prohibit the growth of small amounts of marijuana for personal use (states that allow recreational marijuana also allow persons to grown small amounts of the drug for personal consumption). Liberals have assailed rulings such as Wickard, but cry foul over rulings such as Raich. They cannot have both ways. Maybe, if the government starts to pressure liberals using the same precedent they revere, then maybe they will start to see the light.

There are other examples where terrible progressive rulings have been overruled. For instance, the Court has reversed liberal free speech restrictions on campaign contributions using liberal interpretations of free speech to include expressions such as to burn the American Flag. Thus, McConnell v. FEC has essentially been overruled by Citizens United. After all, money is the most common form of property used by persons to express themselves. Thus, it makes sense to lift monetary restrictions and caps placed on campaign contributions so people can express their political views without any First Amendment restrictions.

Also, if the progressive FDR Court can deprive American citizens due process of the law and lock them up in internment camps for national security reasons (Korematsu v. United States), then why should Trump be denied the right to deny immigrants access to the United States for national security reasons?

Laws and regulations which attack businesses, protect unions, and deny citizens the right to pursue a lawful profession without government interference have been liberal favorites. But, competitive federalism allows citizens and corporations to “vote with their feet” and move to states with right to work laws. This forces liberal states to change or face a mass exodus of tax revenue which is exactly what is happening in Midwest and Northeast for several decades. Companies and individuals are moving to the South for better climates and better tax situations.

The Court denied gun rights in United States v. Miller nearly 80 years ago. Circuit Courts used Justice McReynolds convoluted decision in Miller to declare gun rights were not individual, but collective. But the modern Conservative court used liberal tactics to elevate non-constitutional rights such as the right to self-defense. The right of self-defense provided conservatives the opening they needed to declare gun rights are individual and not collective rights in Heller v. District of Columbia and McDonald v. Chicago. Since the 1960s, liberal Courts have been correctly applying the Bill of Rights to the states to protect individual rights, except for of course, the Second Amendment. It was just a matter of time before these shenanigans caught up to these openly bias liberal justices. After all, judges cannot pick and choose which clauses and amendments they like and which ones they do not in the Constitution. Judges must take the good with the bad. For instance, I do not like the Takings Clause, but unfortunately eminent domain is a lawful and permanent part of our society.

Wednesday, January 2, 2019

Making Sense of Substantive Due Process (Part III)

Substantive due process principles took a serious hit in a few landmark cases during the 1870s. In the Slaughter House cases of 1873 the Court held a New Orleans law to monopolize the butcher business and deny the natural right to work a lawful job for many butchers was constitutional. What was worse, the Court decision basically wrote the privileges and immunities clause out of the Fourteenth Amendment. Because of the Slaughter House cases, later Courts would rely on the due process clause of the Fourteenth Amendment to elevate substantive due process rights. Also, in Bradwell v. Illinois (1873) the Court denied a woman the right to practice law. Even in United States v. Cruikshank (1877) the Court held that the lawful constitutional rights to bear arms and to peacefully assemble only applied to the federal government and states could deny these fundamental rights.

The most controversial substantive due process decision (other than Roe and Dred Scott) was Lochner v. New York (1905, sometimes referred to as the Bakeshop Case). In Lochner the Court upheld most of a New York law to improve bakery work conditions and sanitation issues. The one provision of the law the Court struck down was a provision to limit employee work hours to 10 hours per day and 60 hours per week. The Court held via substantive due process that a work contract between employer and employee was a natural right and government could not interfere to restrict that liberty. Lochner, today, is viewed as a terrible decision by both the right and left. I am in the minority to see it as a good decision. Some laws may have good intentions and may benefit some workers, but they could also be devastating to workers needing money to support their families. Bakery work hour limits could also be devastating to mom and pop bakery shops who are having a tough time competing against larger bakery corporations because they cannot afford to employ more workers. Besides, the New York law was arbitrary in the sense it only placed restriction on bakers and no other types of professions. By the time the Court decided Nebbia v. New York (1934) and West Coast Hotel v. Parrish (1937) during the New Deal, the Court had overturned Lochner era “right to contract” doctrine. The New Deal Court upheld any and every state and federal legislative effort to interfere with individual liberty over economic issues. Individuals no longer had an option to work the hours they wanted or decide if a union was in their best interest. Individuals could no longer make critical decisions over their own welfare. In fact, in Williamson v. Lee Optical (1955) the Court held that an Oklahoma law preventing a person from working a lawful occupation (that Lens Crafters does today) was Constitutional. The Court found the law was “rational” even if it did not entirely make sense.

The progressive era did much damage to the Constitution and individual rights. Justices such as Oliver Wendell Holmes and Louis Brandies trampled on people’s right: From Mueller v. Oregon (1905, denying women the right to work), Bailey v. Alabama (1916, enslaving Blacks in prison for violating work contracts), Buck v. Bell (1927, compulsory sterilization), Schenck v. United States (1917, placing people in prison for publishing anti-draft pamphlets) to Kormatsu v. United States (1943, interning Asian Americans). Justice Holmes would have gone further if he could. In his Abrams v. United States dissent Holmes wrote “persecution for the expression of opinions seems perfectly logical.” What’s even worse, in his dissent in Kawananakoa v. Polybank Holmes wrote that citizens had no right to sue the federal government.

Substantive due process has been pivotal in protecting many individual rights throughout our history: Meyer v. Nebraska (1923, the right to learn a foreign language among other things including marriage, the right to a legal profession, and the right to contract to name a few), Pierce v. Society Sisters (1925, the right to educate children in private schools), Skinner v. Oklahoma (1942, the right to procreate), Rochin v. California (1952, the right for individuals to be free from any government action that may “shock the conscience” and violate individual rights), O’Connor v. Donaldson (1975, right of non-dangerous mentally ill to avoid confinement), Griswold v. Connecticut (1965, the right to privacy – although it was not very well defined since the right is not absolute), Moore v. East Cleveland (1977, the right for a grandmother to live with their grandchildren), BMW v. Gore (1996, the freedom from excessive punitive damages), Troxel v. Granville (2000, the right for parents to make decisions for their children), Lawrence v. Texas (2003, the right to private consensual sexual behavior), and McDonald v. Chicago (2012, the right to self-defense) to name a few of many examples where substantive due process was necessary to prevent any government restrictions on individual natural rights that were not enumerated in our Constitution or Bill of Rights. In fact, none of the above cases are controversial in any regard because they make perfect sense to prevent intrusive and unnecessary government restraint. In fact, cases such as Gideon v. Wainwright (1963) where the Court held the Sixth Amendment applied to the states was a pivotal case for individual rights. Gideon was the first of many cases where the Court applied the Bill of Rights to the states despite earlier precedent holding the Bill of Rights only applied to the federal government. This was not officially substantive due process because the Court was merely applying rights to individuals already outlined in the Bill of Rights of the Constitution, but Gideon was just as important to recognize that individual rights are protected both at the state and federal levels as any substantive due process decision. The goal and entire purpose of the Constitution is to protect individual rights first and foremost. And without any compelling government interest to violate individual rights, then the law should be voided. It is that simple.

Friday, December 28, 2018

Making Sense of Substantive Due Process (Part II)

Substantive due process is a way for the Court to reconcile three important documents with the Fourteenth Amendment of the Constitution. First, the Declaration of Independence which states, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed ….”. Secondly, the 1823 case Corfield v. Coryell defines what it is meant by the privileges and immunities clause in the Constitution: “The inquiry is, what are the privileges and immunities of citizens in the several states? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state; may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental: to which may be added, the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised. These, and many others which might be mentioned, are, strictly speaking, privileges and immunities, and the enjoyment of them by the citizens of each state, in every other state, was manifestly calculated (to use the expressions of the preamble of the corresponding provision in the old articles of confederation) ‘the better to secure and perpetuate mutual friendship and intercourse among the people of the different states of the Union’.” Thirdly, the Civil Rights Act of 1866 defined privileges and immunities as: “That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.”

The Declaration of Independence, Corfield v. Coryell, and the Civil Rights Act of 1866 were the main elements incorporated into the Constitution via the Fourteenth Amendment in 1868. Also, the natural rights contained in the above-mentioned documents can also be implied through the Ninth Amendment suggesting any rights not included in the Constitution should not be denied or disparaged. All persons are born with natural rights which must be the number one priority of any free government to protect and the only way to successfully achieve this goal is via substantive due process since thousands of natural rights are not outlined in the Constitution. Constitutional Convention member, James Wilson, opposed the Bill of Rights because it was impossible to outline all the natural rights that should be protected and he feared that doing so will disparage the rights not mentioned in the document. This fear brought about the Ninth Amendment, but the amendment has been very rarely used to protect individual natural rights. Therefore, Wilson was right, protecting some rights within the confines of the Constitution has disparaged thousands of rights.

Originally, I thought the first occurrence of substantive due process in American History was in Dred Scott v. Sanford (1857). However, this is not true, the doctrine had existed in English law prior to Constitution and was introduced into Constitutional law very early in our history. In Calder v. Bull (1798) Justice Samuel Chase wrote that the transfer of property from one person to another contradicted natural law and was unconstitutional. The Court reiterated Calder v. Bull in Terret v. Taylor (1815) and Wilkerson v. Leland (1829). In Hoke v. Henderson (1833) the Court held that holding a public office was also private property and it could not be taken away without due process of the law. Dartmouth College v. Woodward (1819) was an interesting case because the State of New Hampshire attempted to cancel the school’s charter to force it to become a public institution. Daniel Webster defended Dartmouth College through substantive due process claiming New Hampshire violated natural law by passing a bill of attainer. The Court ruled in favor of Dartmouth but did not adapt the substantive due process theories of Webster. In the 1852 case Bloomer v. McQuewan the Court adopted the “First Sale Doctrine”. This substantive due process ruling protected people from prosecution for reselling a product they legally purchased without violating copyright or trademark protections. For example, a person can resell a legally purchased book without facing prosecution from the author of the book for copyright violations. In Sharpless v. Mayor of Philadelphia (1853, Pennsylvania case) and Stockton and Visalia Railroad v. City of Stockton (1871, California case) the Courts found it legal for a city to tax its residents with the proceeds going to a private company to finance a railroad project. However, the Supreme Court rejected the rationale in both Stockton and Sharpless in Loan Association v. Topeka (1874). The Court held that redistribution of wealth through taxes violated the Fundamental Natural Rights of individual property rights. Persons ought to have the right to do anything lawful with their own bodies and their possessions without any government interference or restrictions so long as their actions do not violate the rights of others. Although liberals would agree that tax money should not be used to supplement the finances of a private company, they would adamantly disagree with preserving natural rights because they believe property (money) can be taken away from one private citizen and given to other private citizens in the form of welfare. Welfare violates the basic principles of individual natural rights to do as they lawfully please with their property (money).

Friday, December 21, 2018

Making Sense of Substantive Due Process (Part I)

Substantive due process is a doctrine used by some Supreme Court Justices to protect individual liberties and natural rights that are not mentioned in the Constitution. Before studying Constitutional law, I was adamantly against the use of this doctrine because it allows Justices the freedom to introduce their opinions and biases instead of deciding cases based on the law. For instance, both Dred Scott v. Sanford (1857, protect the slave property of owners) and Roe v. Wade (1973, protecting abortion) used substantive due process but were horribly decided. In Dred Scott Justices protected slave owner’s property rights but never considered the rights of slaves and in Roe the Justices protected the rights of pregnant women but never considered the rights of the unborn. Natural rights should be about protecting the rights of all persons, not just a few at the expense of others. Natural rights should not contradict or conflict with other rights. Because of decisions such as Dred Scott and Roe, I opposed the substantive due process doctrine. But just because errors were made using substantive due process, it does not mean the doctrine is not sound law. After all, the equal protection clause was misinterpreted for decades after Plessy v. Ferguson (1896, separate but equal doctrine), but that does not mean the equal protection clause was not sound law. Keep in mind, substantive due process is not much different than when the Court interprets implied powers. The Court often implies federal legislative powers even when the powers are not enumerated. Therefore, the Court implicitly interprets the Constitution all the time. This can be just as dangerous as the fears substantive due process will input judge’s biases and opinions into laws. For instance, in McCulloch v. Maryland (1819) Justice Marshall wrote the power to incorporate a National Bank could be implied from the Necessary and Proper Clause to carry out the government’s taxing power. Because of this ruling the Commerce Clause has been interpreted to imply the federal government has the power to control all manufacturing and just about anything economic in nature. The Court’s history is filled with hundreds of implied power cases. Finally, it is often argued that originalism and substantive due process cannot be reconciled and this is problematic since I consider myself as an originalist interpreter of the Constitution. However, I believe that originalism and substantive due process can be reconciled through the original intent of the founders for both the Ninth Amendment and or the Privileges and Immunities clause of the Fourteenth Amendment.

Many will argue incorrectly that the Constitution and henceforth the United States is a democracy. Actually, the Constitution put forth a Republican form of government. While many aspects of the Constitution support democratic ideals but the separation of powers, checks and balances, and federalism doctrines support many non-democratic principles. For instance, the electoral college may prevent presidential candidates with the highest popular vote from winning an election. In the 2016 election this prevented California (the most populous and liberal state) from deciding the outcome of the election. Another example is how all states regardless of population have the same representation in the Senate. Furthermore, many types of bills or procedures require super majorities to pass the House and Senate (not just a democratic majority). The fact the President and the Supreme Court can void democratically passed legislation by Congress is the best example of how separation of powers and our check and balances prevent majorities from having too much power. These are a few of many examples where the design of the Constitution is to limit the power of the democratic majority. The reasons for these security measures are explained best by Madison in Federalist Paper #10 where he highlights the concern over factions (majorities or powerful special interest groups) that will use their power to silence or limit the rights of minority groups. Madison’s fears have come to fruition for a variety of reasons outlined below.

First, many Supreme Court justices practice the use of judicial restraint to uphold questionable legislation. This process “under enforces the Constitution” because Justices believe Congress and States are acting in good faith and give them the benefit of the doubt. Secondly, the Supreme Court does not enforce natural rights within the Bill of Rights equally. For example, for political and commercial free speech the Court uses different levels of scrutiny to render decisions. What’s worse, government power to control, for instance, economic rights are absolute and often conflict with individual liberties. For example, in United States v. Carolene Products (1938), the Court outlines in Footnote Four of the case decision, a few minor exceptions where the Court may restrict a federal or state law which violates the rights of individuals. But Footnote Four fails to mention hundreds of other instances where a law may violate the rights of individuals. Hence, many laws violating the rights of individuals will be held Constitutional using a rational basis test proposed in Carolene Products. In fact, the decision in Carolene Products denied the company the right to sell their “filled milk” products across state lines. Brandies briefs for the case contained false information claiming filled milk products were far less healthy than milk. In essence, the milk lobby squashed their competition with the help of Congress since filled milk was cheaper than milk. This was not only prejudicial; their evidence was proven to be wrong: Filled milk products were healthier for humans than real milk. Regardless, no lawful company should have its rights violated at the expense of another company. Thirdly, the Supreme Court upholds laws and statutes (even if they violate the rights of individuals) because they support what the majority or a powerful special interest group want (like the Carolene Products example above). Consider how majority rule and judicial restraint kept slavery alive for nearly 100 years after our independence with rulings such as upholding the Fugitive Slave Act of 1793 in Prigg v. Pennsylvania and Jones v. VanZandt even though Congress has no enumerated power to legislate over the issue of slavery (the Fugitive Slave Clause is in Article 4, which is a compact between the states, it is not an enumerated power for Congress). Moreover, majority rule and judicial restraint led to some of the worst decisions in our history: Plessy v. Ferguson (1896, separate but equal doctrine), Buck v. Bell (1927, compulsory sterilization), and Korematsu v. United States (1943, the interment of a race of people). Even more recent decisions such as Quinn v. Nevada (2003) and New Orleans v. Dukes (1976) show the effects of majority rule and the power of special interest groups. In Quinn, the Court upheld a procedure by the Nevada legislature to remove a two / thirds majority within its Constitution to pass a budget and in Dukes the Court held a New Orleans law removing all but one company for vending machines was constitutional. In Kelo v. New London (2005) the Court held the taking of private property for private reasons was Constitutional if the result is to better the community. This means nobody’s property is secure from government intrusion and confiscation if a majority in the community feel it is necessary. In Grutter v. Bollinger (1997) the Court has held raced based standards for law school admissions to be Constitutional. In other words, if a majority of persons feel that social justice in the form of reverse discrimination is justified to make up for previous racial discriminatory acts against African-Americans, then it is legal. Let me be clear, no discrimination is justified in the Constitution. Just because a majority of Americans or a special interest group hold a certain belief, it does not make it right.

Wednesday, December 12, 2018

Popular Soveriernty, the Executive, Congress, and SCOTUS: Battle for Supremacy (Part V)

Mootness involves cases where the injury goes away over time. For example, in DeFunis v. Odegaard (1974) the Court reviewed a case involving reverse discrimination of a White student rejected from law school because of diversity policies. However, by the time the case got the Supreme Court, the student was admitted to the law school and was only a year from graduation. Therefore, the Court held the case was moot since no injury remained. In Roe v. Wade (1973) the Supreme Court decided the case even though Roe’s baby was aborted and the injury was moot. Similarly, in Firefighters v. Stotts (1984) the Court decided this case even though there was no injury. In Stotts, those firefighters who lost their jobs due to affirmative action were rehired and hence the case should have been moot. Also, in North Carolina v. Rice (1971) the Court correctly decided a moot case to expunge the criminal record of Rice. In more recent times, the Court has settled a few environmental cases over the issue of mootness. In Friends of the Earth v. Laidlaw Environmental Services (2000) the Court held an environmentalist group could sue a company for polluting the Tyger River since they can no longer use the river for recreational purposes. The defendant claimed the case was moot because they already closed the polluting plant. The Court disagreed because the defendant still owned the plant and could reopen it at any time. In Summers v. Earth Island Institute (2009) the Court held an environmentalist group had no standing against the Forest Service because the dispute was settled prior to reaching the High Court making the case moot. In these environmental cases, once again, the Court protects the federal government, but refuses to do the same for a corporation or individual.

Ripeness is the opposite of mootness. A case can be brought to the Supreme Court too soon, prior to any injury. Poe v. Ullman (1961) is probably the most famous ripeness case. Since Connecticut did not enforce a state statute that made it illegal for married couples to use contraception, it was not ripe. That changed in the Landmark case Griswold v. Connecticut in 1965. The 1947 case United Public Workers v. Mitchell involved public workers questioning the constitutionality of the Hatch Act (denied public workers from working on political campaigns). The Court held that since no injury occurred, the case was not ripe. Similarly, in Doe v. Bush (2003) the Court held a citizen had no standing to challenge to the Iraq War because a “clear” Constitutional issue was not apparent and therefore, the case lacked ripeness.

The political questions doctrine was released in Baker v. Carr (1962). Baker v. Carr was a political questions case because it dealt with state districting guidelines for elections. However, the Court incorrectly ruled on the case saying that state house and senate seats have to be divided equally and proportionally based on population. The Court held that the Constitution says the Federal Government must assure each state has a Republican form of government. However, Republican and Democratic forms of government are not the same thing. The Court ruling in Baker v Carr implemented a Democratic form of government, not a Republican one (Luther v. Borden in 1849 said establishing Republican forms of government among the states was a political question). Elections and disputes between the Executive and Congress are generally seen as political questions beyond the powers of the Court. For example, the Court has held impeachment (Nixon v. United States, 1993), presidential termination of treaties (Goldwater v. Carter, 1979), amending the Constitution (Coleman v. Miller, 1939), and apportionment of state districts (Colegrove v. Green, 1946 overruled by Baker v. Carr, 1962) were political questions. On the other hand, the legislative veto (INS v. Chadha, 1983) and the exclusion of members from Congress (Powell v. McCormick, 1969) were not political questions. Of course, the most famous political questions case was Bush v. Gore (2000). In this case, the Court incorrectly decided that the Florida recount violated the equal protection clause for using different counting methods amongst the Florida counties. However, the Court correctly held that the Florida Supreme Court introduced violated the Florida constitution by creating new election law and only the Florida legislation could introduce and implement election law. Court jurisprudence doctrines of ripeness, mootness, standing, and political questions check Supreme Court power. However, the Court does not decide these types of cases in a consistent manner and generally decide them in favor of the government over the rights of individual citizens.

In most cases regarding overturned statutes and laws, the Court would eventually overrule itself to keep up with the changing times. The Court has essentially overruled prior decisions over a hundred times in the Court’s history. In most of these cases, the Court caved to political pressure from Congress and the voting public since the corrected decisions were worse than the original ruling. Here are some of the critical overturned cases by the Court: The Legal Tender Cases following the Civil War allowed the government to print paper money despite the fact the government defaulted on the payment to individual citizens. The right of employer and employee contracts over wages and hours in Lochner v. New York (1905) was overruled in West Coast Hotel v. Parrish (1937). This allowed the Federal government to control wages and hours of most American citizens. Child labor laws were left to the States in Hammer v. Dagenhart (1918) until it was overruled in United States v. Darby (1941). The Court, Congress, and history books never consider cases where children want to work and adults need longer hours to support their families. Instead, the new precedent denies these fundamental rights to people who are willing to do the work. To make matters worse, many wage, hour, and child labor laws were discriminatory because they only targeted certain businesses and genders. Some overruled cases, on the other hand, are good decisions to protect human rights. In Minersville School District v. Gobtitis (1940) the Court held that mandatory flag salutes in schools was constitutional even if it violated someone’s religious believes. This ruling was correctly overturned just three years later in West Virginia v. Barnette (1943). In Pennsylvania v. Nelson (1956) the Court held a Pennsylvania sedition law was unconstitutional because it conflicted with the Smith Act (Congress sedition law). While Congress was debating legislation to overturn the decision to allow both state and federal sedition laws to coexist the Court overruled itself in Uphaus v. Weiman (1959). In Olmstead v. United States (1928) the Court held that wiretaps outside the premises of the accused was Constitutional since there was not any search and seizure. Chief Justice Taft handed down the opinion and opened the door for Congress to act to correct this loophole. Congress debated the issue for nearly 40 years and could never reach a compromise over the legalities of wiretapping. In Klatz v. United States (1967) the Court acted and overruled Olmstead v. United States. Another example was the overruling of Bowers v. Hardwick (1986) by Lawrence v. Texas (2003), but the Courts methodology in doing so was highly flawed and created bad law.

The bottom line is that decisions and majority opinions handed down by the Court are never final supreme laws of the land otherwise the Court would have no power to overrule precedent. The Court has no say over certain cases because of standing, mootness, ripeness, and political questions. Congress may also fail to comply with decisions by the Court or Congress may act to overturn Court rulings with new laws and statutes. The National Bank issue showed that the interpretation of the Constitution is a task completed by all three branches of government and not just the Court. All branches of government take an oath to protect and serve the Constitution and the Constitution itself says Congress shall pass no laws which violate the Constitution nor should they pass any ex post facto laws or bill of attainers. The only way for Congress and the Executive to accomplish this task is to understand and interpret the Constitution (It is not just the task of the Supreme Court and the judicial system). Sometimes Congress and the Court work well together to protect the rights of individuals. For example, in Katzenbach v. Morgan (1966) the Court upheld a federal statute as a proper interpretation of the Fourteenth Amendment to protect the voting rights of Puerto Ricans in New York.