Monday, November 19, 2018
The battle for power and supremacy between the President, Congress, and SCOTUS has raged since our founding. Most people think that SCOTUS has the final word on a law’s Constitutionality. That is not entirely true because there are avenues that Congress can take to change a Court ruling such as amending the Constitution. For instance, five amendments to the Constitution were made to overturn prior Court decisions: The Eleventh Amendment overturned Chisholm v. Georgia (1793), the Thirteenth and Fourteenth Amendments overturned Dred Scott v. Sanford (1857), the Sixteenth Amendment overturned Pollock v. Farmers’ Loan and Trust (1895), and the Twenty-sixth Amendment overturned Oregon v. Mitchell (1970). Obviously, Congress won these battles, but Chisholm and Pollock were rightly decided (in my minority view). Chisholm was a South Carolina resident who sued Georgia to claim unpaid debts from the Revolutionary War. The Eleventh Amendment provided states sovereign immunity from lawsuits coming from citizens in other states. This changed the meaning of the Constitution from providing ultimate sovereignty to the citizens of America but instead to the state governments. Chisholm was never paid. Governments should repay their debts! The Sixteenth Amendment passed the income tax which the Court found unconstitutional in the Pollock case. This changed the balance of dual sovereignty between the States and Federal Government to one where ultimate sovereignty resided solely in the Federal Government by providing them with coercive power over the states. Therefore, the Eleventh and Sixteenth Amendments changed the sovereign hierarchy in the Constitution from: the people (ultimate) and State and Federal Government’s (equal but secondary) to: the Federal Government (ultimate), State governments (Secondary), and the people (last). These two amendments changed our government as one being derived from “We the People” to one controlled by “The Federal Government”. The Twenty-sixth Amendment made the voting age 18 universally in every state for both national and local elections. Of course, the overturning of Dred Scott could not happen fast enough. Dred Scott was the single biggest injustice in SCOTUS history. Congress can also overrule any Dormant Commerce Clause decisions by the Court. These cases involve a Court decision over a state statute that Congress has yet to legislate using the Commerce Clause. The earliest such case was the 1852 case between Pennsylvania v. Wheeling and Belmont Bridge Company. The Court ruled the height of the Wheeling bridge across the Ohio river was too low and disrupted commerce since many commercial boats could not pass under such a low bridge. A few months after the decision Congress passed a law declaring the bridge to be of lawful height. This act did not go over well with many of the Justices who were angered and thought Congress had no right to overrule a High Court decision. Another example involves Leisy v. Hardin (1890) where the Court ruled that a State could not prohibit the sale and consumption of liquor, but again, within 6 months Congress passed legislation to overrule this case. One final example involves the United States v. South-Eastern Underwriters Association (1944) where the Court ruled that insurance sales where subject to regulation via the Commerce Clause (overruled Paul v. Virginia, 1869). Within a year, Congress passed the McCarran-Ferguson Act (1945) to overrule this decision. For this reason, many modern Justices do not like ruling on Dormant Commerce Clause cases since Congress can overrule the result. The legislative veto is another interesting example because Congress simply decided not to comply with a Supreme Court ruling. Congress does not have veto power but in the past, they have attached this instrument to legislation providing for either one or both Houses of Congress the power to veto a particular Executive act. The Supreme Court held that the one or two house legislative veto was unconstitutional in INS v. Chadha (1983). But this has not stopped Congress from using legislative vetoes by Congressional committees to check Executive Power. If the legislative veto by either House is unconstitutional then it should intuitively follow that the legislative veto by any House committee would also be unconstitutional. So, the question that begs to be answered is why does the Executive continue to allow legislative vetoes by Congress? First, Congress will find inventive or creative ways to garner some form of a legislative veto regardless as to what the Court and the President do to stop it. Secondly, the Executive can also benefit from a similar plan. For example, Congress provided FDR, for instance, with legislative duties that were checked by a legislative veto. This obviously provided the Executive with broader legislative powers. A more egregious example of non-compliance is when President Lincoln suspended a writ of habeas corpus during the Civil War and simply ignored Chief Justice Taney’s demands in Ex parte Merryman to end the practice. Taney and the Court were damaged goods after the Dred Scott decision and SCOTUS during the Civil War era was probably at its weakest point in American history. The Exceptions Clause (Article 3, Section 2, Clause 2) of the Constitution is another way Congress can control the power of the Court. The clause states: “In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” However, Congress has had very little success using this clause in U.S. history. In Ex parte McCardle (1869) during Civil War Reconstruction Congress passed a law which withdrew the Court’s jurisdiction from reviewing suspended writs of habeas corpus in the militarily controlled South. McCardle had been jailed without a writ of habeas corpus after being arrested for publishing articles which incited violence and insurrection. The Court dismissed the case for lack of jurisdiction upholding Congress’s authority under the Exceptions Clause. Chief Justice Chase said, “the power to make exceptions to appellate jurisdiction of this court is given by express words.” In United States v. Klein (1872) the Court correctly denied Congress the power to apply the Exceptions Clause to the Executive Branch. In Klein, Congress failed to limit the President’s pardon powers through the Exclusions Clause. There have been some unsuccessful modern attempts to apply the Exclusions Clause. Liberals in the 1980s attempted to deny appellate jurisdiction to the Court over social issues. Hence, social issues would have been decided by the state courts and those decisions could not be appealed to federal courts. This is exactly what should be happening, but the reason liberals pursued this route was solely to block any future cases against abortion which may dilute the Roe v. Wade (1973) decision. If liberals had succeeded using the Exceptions Clause for social issues then they would have protected abortion (abortion has been diluted: Scrutiny in Casey v. Planned Parenthood and funding in Webster v. Reproductive Health Services), but they would have lost opportunities over gay issues. One reason the Exceptions Clause has not been used very successfully is because Congress is limited as to what they can deny jurisdiction without violating individual, corporate, and state rights to due process of the law.
Wednesday, November 14, 2018
Most of the information in this post are from books written by law professor Louis Fisher. Although his books are insightful, I by no means agree with Fisher’s interpretation of the Constitution as being a living organism changing with the times. Before discussing the purposeful contents of this blog, I will first like to dispel why Louis Fisher’s constitutional views are misguided. First, Fisher comes to the conclusion that an originalism interpretation of the constitution is wrong by using selective originalism. For instance, Fisher would cite Madison’s Federalist 44 where he writes the Constitution was intentionally written in general or vague terms to allow Justices flexibility to interpret the document in the future. Maybe, but in Federalist 78 Hamilton writes the Supreme Court would be the weakest branch in government. If the Supreme Court was to be a weak branch of government then why would broad interpretations of the Constitution be permissible? My point is that that Federalist 78 and 44 contradict each other. Fisher may argue that the Supreme Court may have limited powers in the Federalist Papers but Congress and the President have broad powers. But in the next federalist paper (45) Madison wrote: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation and foreign commerce. ... The powers reserved to the several States will extend to all the objects which in the ordinary course of affairs, concern the lives and liberties, and properties of the people, and the internal order, improvement and prosperity of the State.” This certainly does not sound like Madison promoted a broad interpretation of Constitutional powers for the federal government at the expense of the state governmental powers. In another example, Fisher explains how Madison intentionally left the word “expressly” out of the Tenth Amendment (written as: “powers not delegated to the United States” instead of “powers not expressly delegated to the United States”) provided wiggle room for Chief Justice Marshall’s opinion in McCulloch v. Maryland to uphold the National Bank. But what Fisher fails to mention is that Madison was vigorously opposed to the National Bank. If Madison had hindsight that Marshall would make a play on his words he would have put the word “expressly” in the Amendment. Another example of Fisher’s selective originalism is Madison’s argument that the “Appointment Clause” can be implied to mean the President also has “removal” powers (the President can both appoint and remove candidates). Madison’s removal power theory was upheld by the Court in Myers v. United States, but not until 1926. Madison’s removal power theory makes perfect sense, but supporting some implied powers did not mean Madison approved of the implied power of Congress to create a National Bank for carrying out taxing power. In fact, Madison cautioned if it is implied a National Bank can be created for taxing power then there is no power that can be denied the federal government. Madison’s fears have come to fruition since the Federal Government continues to grow in size and stature. Appointment and removal were closely related, a National Bank and taxing were not! It was intuitively evident that either the Executive or Congress would have removal power, but it was not intuitively evident the Federal Government would have the power to incorporate any business let alone a bank. Fisher argues against originalism by asking questions such as which Framers do we select; which periods of their lives do we evaluate; what documents, letters, or diaries do we use; which is more important the Constitutional Convention or the Ratification Conventions and so on. The answer to these questions is we should consider all information available and not selective information as Fisher does by bringing forth a few of Madison’s statements. Fisher would also argue that Justice Taney used original intent to deny citizenship to African-Americans in Dred Scott. That is not even remotely true. Taney created the concept of dual citizenship (national and state) to make his argument even though the Marshall Court had already decided that a citizen of state was a citizen of the nation (Shanks v. Dupont, 1830). Taney violated stare decisis and the intent of the framers by implying that state and national citizenship were not one in the same in Dred Scott v. Sanford. In fact, the Dred Scott case was such an anomaly, it was the first case in our history that the Court struck down an act by Congress (the Missouri Compromise). Taney’s opinion drifted from original intent so he could input his own opinion, bias, and prejudice about slavery in the decision. Dred Scott was also the first decision that used substantive due process (incorrectly) to protect the property rights (slaves) of Southerners. None of the doctrines used by Taney in Dred Scott (dual citizenship, substantive due process, and judicial activism) support originalism, but instead support a living Constitution. Let’s consider another example of Fisher’s misguided philosophy. Fisher likes to cite the prayer case, Engel v. Vitale (1962), in most of his writings. In this case, the Court ruled that a prayer written by a public school which was recited by its students on a daily basis was unconstitutional. I certainly understand Fisher’s point that this did not remove prayer from schools as many conservatives argued. The decision merely removed prayers written and designed by a public institution. But it was still a bad decision because the Court moves in “baby steps” as noted by Fisher. Hence, Engel v. Vitale was the first step leading to decisions such as Lee v. Weisman (1992) were the Court invalidated a benign and neutral prayer at a high school graduation. In Newdow v. Elk Grove School District (2002) the Court ruled no standing or the words “under God” would have been removed from the Pledge of Allegiance based on the Weisman precedent. The Court has even removed displays of the Ten Commandments from public grounds (McCreary County v. ACLU, 2005). According to these views and the living Constitutional interpretations of the Establishment Clause (which was only meant to prevent a National Religion) the words “In God We Trust” will eventually be eliminated from our currency; government run fire departments will have to let churches burn to the ground; and pastors who commit crimes will be shielded from government prosecution. This is the result of interpreting the Constitution as a living document instead of its original intent. The assault on religion started with a ridiculous modern and very broad interpretation of the separation of church and state doctrine introduced by Hugo Black in Everson v. Board of Education in 1947 (separation of church and state does not exist in the Constitution). Separation of church and state was a statement written by a Thomas Jefferson in a courtesy letter to a Connecticut church. Remember, Jefferson was not a participant in the Constitutional Convention, nor did he write any of the Amendments in the Bill of the Rights. Sometimes a fairly benign decision is merely a stepping stone to further, more intrusive decisions. It may take 20 or 50 years, but when the Court adopts doctrines such as separation of church and state which are outside the scope of the Constitution they become harmful exercises that will result in the violation of individual liberties. Although Fisher does not believe in originalism, the outcome in Engel v. Vitale is another case of selective originalism (one Thomas Jefferson letter when there are hundreds of other documents by other Founders at the Convention who have entirely different views of the Establishment Clause). Fisher believes historical development (excluding the founding) and even scientific or social studies have as much, if not more, impact on the law than the law itself. For instance, Fisher incorrectly theorizes that original intent would not reconcile with the Court’s ruling in Brown v. School Board to end segregation. Fisher says without social science evidence showing that black children felt more inferior to white children segregation would continue. This is not true, and I have written blogs about this topic specifically. Fisher also points to the Eighth Amendment and the “Cruel and Unusual Punishment” clause and how it has evolved with changing public views to outlaw the death penalty in many states. Yet, at the same time, Fisher dismisses the use of Natural Law to reconcile the Constitution with the Declaration of Independence. This makes little sense. Changes in perception over the death penalty may in fact be to belief in natural law principals. In fact, the Civil Rights Act of 1866, Coryell v. Corfield, and Meyer v. Nebraska have put forth many Fundamental Rights found in Natural Law as good precedent and law of America. For instance, Fisher disagrees with Justice Frankfurter’s Natural Law doctrine to strike down violations of rights that “shock the conscience” but that is exactly what is happening with changing views over the death penalty. To many, the death penalty shocks the conscience and it is therefore wrong because it violates Natural Law. Fisher is quick to dismiss many Fundamental Natural Rights such as freedom of contract, but he supports Fundamental Natural Rights such as the freedom to choose. Why is fair to say a person can choose to have an abortion but at the same time they cannot choose how many hours they work or how much wheat they can grow on their farm without government intrusion? Because Fisher believes that Congress has correctly decided economic issues: one size fits all and therefore national economic plans assume the economic conditions in New York City are the same as in Cheyenne Wyoming. This is precisely why we have states and localities. Fisher is right the Court follows popular sovereignty or the will of the people (history). And that is precisely why history is not always the best avenue to judge cases. Some of the biggest injustices in history were decided because a majority of Americans agreed with slavery, segregation, eugenics, women inferiority, sterilization, the internment of a race, abortion and so on. History is often wrong, but the law is not, especially Natural Law and the original intent of the Constitution! Fisher’s “living Constitution” provides for decisions based on judicial activism, bias, prejudices, and opinions but not the law. The government does not create rights, rights exist before government. Government only protects rights. Now onto the purpose of this blog.
Friday, November 9, 2018
Trump was right when he said elections always seem to sway Democrats way days after the election. The day after the election Senate races where red in Montana, Arizona, and Florida. Rosendale was up by 2,000 votes in Montana but the mail-in ballots broke for Tester by a 68-32 margin yielding him a comfortable 18,000 vote margin. Essentially that is equivalent to saying all the mail-in ballots came from the largest and most liberal county in the state: Missoula. What are the chances of that happening? Remember, mail-in ballots traditionally favor Republicans whereas early voting traditionally favors Democrats. This is true, in part, because a big portion of mail-in ballots are from the military. In Arizona, the same story: McSally led Sinema by more than 17,000 votes or about 1% with 600,000 remaining mail-in ballots from Pima, Maricopa, and Pinal Counties. Before the counting of the mail-in ballots, Sinema won Pima County by about 12% and the largest county Maricopa, by a mere 0.8%. McSally won Pinal county by 14%. There were 475,000 mail-in ballots from Maricopa, 80,000 from Pima, and 32,000 from Pinal remaining to be counted. If the election day averages were maintained then McSally would hold on to a slight 7 to 8 thousand vote margin since the edge for Sinema in these three counties was about 1.5% on election day. However, after counting the first 150,000 votes Sinema gained a 9,000-vote margin (a 26,000 vote swing). Her vote margin in these three counties swelled to over 7% and the advantage in Maricopa quadrupled with only 125,000 additional votes. Sinema is winning Maricopa County mail-in ballots by better than a 58-42 advantage when the first million votes cast on election day were essential split 50/50. While the margin in Republican Pinal county remained consistent, the margins in Democratic Maricopa grew to 3% and to 14% in Pima. The voting continues 3 days after the election and judging by these results Sinema will be the winner by anywhere from 70,000 to 100,000 votes. If this holds, Sinema was right about one thing: Arizonians are crazy. Of course, everyone is aware of what is going on in Florida. It seems at least a dozen state election laws have been violated in Broward County. About 78,000 additional votes were found in Broward County and an additional 15,000 votes in Palm Beach County (and probably more to come). After election night Scott led Nelson by 57,000 votes. That lead has diminished to under 15,000 votes putting the race not only in an automatic recount range (0.5%), but an automatic hand recount range (0.25%) where canvassing boards can rule on the intent on thousands of more ballots in highly democratic districts. Of course, the vote is breaking by over a 75-25 margin in favor of the Democrats for all those newly found ballots. What makes this even more suspicious is that not one county in Florida favored Nelson by 70%. In fact, Broward county is running about 10% higher than Miami-Dade County when it usually runs about 3-5 points higher for Democratic vote. And the voting continues. One more suspicious aspect of this race: Why didn’t liberal media outlets call the race when all the votes were counted? Did they know a hundred thousand or more votes were outstanding in Democratic strongholds? This is not just a Senate problem. It has also happened in a Governor race (Connecticut) and a few House races such as in New Mexico 2 and New Jersey 4. I am waiting for some California races and Maine 2 to flip to the Democrats as well. But as Trump suggests, races ONLY flip from Republican to Democrat the day after elections and no such anomaly happens the other way. Traditionally, on election night, it is not uncommon for Republicans to garner big leads and to see that diminish as the night wears on. That is because rural vote reports much faster than urban vote. But that is not what we are talking about here. We are talking about mail-in ballots and critical races changing days after election day.
Thursday, November 8, 2018
Republicans can spin the gaining a few seats in the Senate all they want, it does not tell the entire story. Democrats flipped over 30 house seats, 7 governor seats, and the State legislatures in six states. The Senate landscape was very favorable to the Republicans this cycle and if that had not been the case then they would have lost seats there too. And if it were not for the Democrats playing politics with the Brett Kavanaugh confirmation process by trying to ruin a good man’s reputation with smears and lies that were unsubstantiated, they may have won the Senate too. Of 5 Democrats defending Senate seats in red states who voted against Kavanaugh only Tester survived (barely, by 1 point). Even Joe Manchin, who voted for Kavanaugh, had a tighter than usual race, winning by 4 points. Why was this election cycle a blue wave? First, the Democrats flipped house seats that nobody even thought were in danger such as in red Oklahoma 5. The average number of house seats changing hands in a midterm after the election of a new president is 28 and the Dems beat that average. Second, the landscape was ripe for Governorships to change hands in states like Illinois and Michigan. But the Democrats also turned governorships in red Kansas. And it was a bittersweet win for the Democrats in Wisconsin, finally unseating Scott Walker who has been a thorn in the side of union fanatics for 8 years. Finally, the Democrats flipped dozens of State Legislature seats including gaining full control in Colorado, New York, Maine, Minnesota, New Hampshire, and Connecticut. They were even able to flip 11 seats in the Texas legislature. This means the Democrats will be better positioned when redistricting begins after the 2020 census. This is important because New York, Minnesota, Michigan, Illinois, and Pennsylvania will probably face redistricting because they will lose a House seat. And Oregon and Colorado may face redistricting for gaining a House seat. This will enable Democratic majorities to gerrymander the boundaries so only Republicans lose a seat and only Democrats gain a seat. The Democrats also picked up 4 attorney general seats which will provide states more ammunition to sue the Trump Presidency. Other than a favorable Senate landscape and the Kavanaugh debacle, the Democrats would have won the Senate. They for sure would have limited the damage done in the Senate by at least holding Florida. Florida was certainly one bright spot for the Republicans even though they lost two house seats. Also, the Republicans had a good night in Ohio, even though they lost the Senate seat, by holding the governorship and all its House toss-up seats. Do not get me wrong, this was a blue wave, but it was not a blue tsunami like the one that hit Presidents Clinton and Obama. There were substantial Democratic gains offset a bit a by a poor Senate showing. And this is probably as good as Republicans could have expected considering over 40 Republican retirements made the mid-term battle to hold the house almost impossible. If those retirements could have been halved, it may have been a different story. Trump knew the writing was on the wall for holding the House so he correctly focused his attention on the Senate and he was able to protect that part of his coalition. This country is more divided than ever before and the anti-Trump rage has been at a fever pitch for two years and it led to record mid-term turnout numbers. And despite this, the Republicans were able to manage to keep the generic ballot to 7 points in favor of the Democrats. This sounds like a lot but it is not much different than what Democrats favor Republicans nationally going into the election. Many polls were suggesting a double-digit win in the generic ballot and this would have been a Tsunami. The pressure will be on Democrats. If they decide to open dozens of investigations into Trump and try to impeach him, it will surely work to the Republicans advantage in 2020. Especially if Democrats decide not to work with Trump on things both sides may have a vested interest. But I do not see Pelosi (or whomever is in charge) working with Trump to give him any credit for legislative wins. Even so, all is not lost for Trump since he has a friendlier Senate majority to continue to appoint conservative federal judges. Here is a bold prediction for what to expect from the next two years: Polarization will be worse and politics will be uglier than ever: Especially with a presidential election on the horizon and the never-ending Mueller investigation.
Monday, November 5, 2018
In the past I generated models based on polling data to predict election outcomes. However, models can only be as accurate as the polling data I am trying something different this year. I am only going to look at early voting numbers. A few states provide some demographic information on their early voting totals such as party affiliation, ethnicity, and gender. By comparing early voting numbers with prior years we may be able to obtain some good information. For instance, in 2016 the early voting numbers in Nevada and North Carolina told me the average polling numbers in these states was wrong. And that ended up being correct. The average of polls in Nevada gave Trump a slight lead of between 1 and 2 points and Clinton a 2 to 3 point advantage in North Carolina. However, voting trends from 2012 to 2016 showed higher Democratic turn out in Nevada and higher Republican turn out in North Carolina. The data was correct and the polls were wrong. Why? Because the sample size is enormous in states that allow early voting. In 2016 here are some averages for national early voting: Democrats = +7.5 (% of Democrats - % of Republicans) Female = +14.1 (% of Females - % of Males) White = +39.1 (% of Whites - % of Blacks - % of Hispanics) In 2018 the averages look like: Democrats = +5.8 (% of Democrats - % of Republicans) Female = +9.5 (% of Females - % of Males) White = +37.5 (% of Whites - % of Blacks - % of Hispanics) Here are a few State trends that have key races from 2016 to 2018: Arizona +1.5 R Florida +0.9 R Colorado +1.1 D Georgia +3 B, +2.6 M North Carolina +2.4 D, +2.3 W, +2.7 M Nevada +2.2 R West Virginia +5.2 R For example, North Carolina means there is 2.4% more Democrat turnout, 2.3% more white turnout, and 2.7% more male turnout in 2018 than 2016. Higher Democrat turnout is obviously good for Democrats, but a higher white and male turnout is more favorable to Republicans. Overall, since blacks vote in higher percentage for the Democratic candidate and males lean towards Republicans I see this state as a toss up because there is a significant higher Democrat turnout, but North Carolina has a high Democrat populous. Conclusion: Things are trending very fast towards the Democrats. Ideology turnout is down to 1.7% in favor of Republicans, 1.6% in favor of a higher minority turnout, and the gender turnout is down to 4.6% in favor of Male turnout. This data does not suggest a blue wave. It suggests modest pickups for the Democrats. I suspect at this time things favor Republicans in Arizona, Florida, West Virginia, and Nevada whereas Democrats have the edge in Colorado, Iowa, and Georgia, and North Carolina is a tossup. I see Democrats having a +5 to +7 advantage and that is not much different from the past several major election cycles. Of course it comes down to election day and who shows up to vote.
Thursday, November 1, 2018
In the past I generated models based on polling data to predict election outcomes. However, models can only be as accurate as the polling data I am trying something different this year. I am only going to look at early voting numbers. A few states provide some demographic information on their early voting totals such as party affiliation, ethnicity, and gender. By comparing early voting numbers with prior years we may be able to obtain some good information. For instance, in 2016 the early voting numbers in Nevada and North Carolina told me the average polling numbers in these states was wrong. And that ended up being correct. The average of polls in Nevada gave Trump a slight lead of between 1 and 2 points and Clinton a 2 to 3 point advantage in North Carolina. However, voting trends from 2012 to 2016 showed higher Democratic turn out in Nevada and higher Republican turn out in North Carolina. The data was correct and the polls were wrong. Why? Because the sample size is enormous in states that allow early voting. In 2016 here are some averages for national early voting: Democrats = +7.5 (% of Democrats - % of Republicans) Female = +14.1 (% of Females - % of Males) White = +39.1 (% of Whites - % of Blacks - % of Hispanics) In 2018 the averages look like: Democrats = +4.9 (% of Democrats - % of Republicans) Female = +9.2 (% of Females - % of Males) White = +38.7 (% of Whites - % of Blacks - % of Hispanics) Here are a few State trends that have key races from 2016 to 2018: Arizona +2.7 R Florida +3.1 R Colorado +0.7 D Georgia +2.3 B, +3.3 M North Carolina +2.8 D, +3.5 W, +3.3 M Nevada +3.5 R West Virginia +5.4 R For example, North Carolina means there is 2.9% more Democrat turnout, 5.2% more white turnout, and 4.7% more male turnout in 2018 than 2016. Higher Democrat turnout is obviously good for Democrats, but a higher white and male turnout is more favorable to Republicans. Overall, since blacks vote in higher percentage for the Democratic candidate and males lean towards Republicans I give a slight advantage to Republicans even though there is a significant higher Democrat turnout, but North Carolina has a high Democrat populous. Conclusion: Things are trending very fast towards the Democrats. Ideology turnout is down to 2.6%, 0.4% in favor of a higher minority turnout, and the gender turnout is down to 4.9% in Male turnout. Every data point moved the democrats way except Nevada. I suspect at this time things favor Republicans in Arizona, Florida, and Nevada whereas Democrats have the edge in Colorado, Georgia, and North Carolina.
Monday, October 29, 2018
In the past I generated models based on polling data to predict election outcomes. However, models can only be as accurate as the polling data I am trying something different this year. I am only going to look at early voting numbers. A few states provide some demographic information on their early voting totals such as party affiliation, ethnicity, and gender. By comparing early voting numbers with prior years we may be able to obtain some good information. For instance, in 2016 the early voting numbers in Nevada and North Carolina told me the average polling numbers in these states was wrong. And that ended up being correct. The average of polls in Nevada gave Trump a slight lead of between 1 and 2 points and Clinton a 2 to 3 point advantage in North Carolina. However, voting trends from 2012 to 2016 showed higher Democratic turn out in Nevada and higher Republican turn out in North Carolina. The data was correct and the polls were wrong. Why? Because the sample size is enormous in states that allow early voting. In 2016 here are some averages for national early voting: Democrats = +7.5 (% of Democrats - % of Republicans) Female = +14.1 (% of Females - % of Males) White = +39.1 (% of Whites - % of Blacks - % of Hispanics) In 2018 the averages look like: Democrats = +4.1 (% of Democrats - % of Republicans) Female = +8 (% of Females - % of Males) White = +41.1 (% of Whites - % of Blacks - % of Hispanics) Here are a few State trends that have key races from 2016 to 2018: Arizona +4.2 R Florida +3.5 R Colorado +0.4 D Georgia +0.2 W, +4.8 M North Carolina +2.9 D, +5.2 W, +4.7 M Nevada +2.9 R West Virginia +5.6 R For example, North Carolina means there is 2.9% more Democrat turnout, 5.2% more white turnout, and 4.7% more male turnout in 2018 than 2016. Higher Democrat turnout is obviously good for Democrats, but a higher white and male turnout is more favorable to Republicans. Overall, since blacks vote in higher percentage for the Democratic candidate and males lean towards Republicans I give a slight advantage to Republicans even though there is a significant higher Democrat turnout, but North Carolina has a high Democrat populous. Conclusion: So far things good for Republicans they are up 3.4% in turnout, 2% in White turnout, and 6.1% in Male turnout. However, these numbers have been trending back towards the Democrats this week.
Friday, October 26, 2018
In the past I generated models based on polling data to predict election outcomes. However, models can only be as accurate as the polling data I am trying something different this year. I am only going to look at early voting numbers. A few states provide some demographic information on their early voting totals such as party affiliation, ethnicity, and gender. By comparing early voting numbers with prior years we may be able to obtain some good information. For instance, in 2016 the early voting numbers in Nevada and North Carolina told me the average polling numbers in these states was wrong. And that ended up being correct. The average of polls in Nevada gave Trump a slight lead of between 1 and 2 points and Clinton a 2 to 3 point advantage in North Carolina. However, voting trends from 2012 to 2016 showed higher Democratic turn out in Nevada and higher Republican turn out in North Carolina. The data was correct and the polls were wrong. Why? Because the sample size is enormous in states that allow early voting. In 2016 here are some averages for national early voting: Democrats = +7.5 (% of Democrats - % of Republicans) Female = +14.1 (% of Females - % of Males) White = +39.1 (% of Whites - % of Blacks - % of Hispanics) In 2018 the averages look like: Democrats = +2.8 (% of Democrats - % of Republicans) Female = +7.6 (% of Females - % of Males) White = +41.8 (% of Whites - % of Blacks - % of Hispanics) Here are a few State trends that have key races from 2016 to 2018: Arizona +5 R Florida +4.4 R Colorado +0.3 R Georgia +0.4 W, +5.4 M North Carolina +3 D, +6 W, +4.9 M Nevada +3 R West Virginia +4.9 D For example, North Carolina means there is 3 % more Democrat turnout, 6% more white turnout, and 4.9% more male turnout in 2018 than 2016. Higher Democrat turnout is obviously good for Democrats, but a higher white and male turnout is more favorable to Republicans. Overall, since blacks vote in higher percentage for the Democratic candidate and males lean towards Republicans I give a slight advantage to Republicans even though there is a significant higher Democrat turnout, but North Carolina has a high Democrat populous. Conclusion: So far things good for Republicans they are up 4.7% in turnout, 2.7% in White turnout, and 6.5% in Male turnout. However, these numbers have been trending back towards the Democrats this week.
Tuesday, October 23, 2018
In the past I generated models based on polling data to predict election outcomes. However, models can only be as accurate as the polling data I am trying something different this year. I am only going to look at early voting numbers. A few states provide some demographic information on their early voting totals such as party affiliation, ethnicity, and gender. By comparing early voting numbers with prior years we may be able to obtain some good information. For instance, in 2016 the early voting numbers in Nevada and North Carolina told me the average polling numbers in these states was wrong. And that ended up being correct. The average of polls in Nevada gave Trump a slight lead of between 1 and 2 points and Clinton a 2 to 3 point advantage in North Carolina. However, voting trends from 2012 to 2016 showed higher Democratic turn out in Nevada and higher Republican turn out in North Carolina. The data was correct and the polls were wrong. Why? Because the sample size is enormous in states that allow early voting. In 2016 here are some averages for national early voting: Democrats = +7.5 (% of Democrats - % of Republicans) Female = +14.1 (% of Females - % of Males) White = +39.1 (% of Whites - % of Blacks - % of Hispanics) In 2018 the averages look like: Democrats = +2.4 (% of Democrats - % of Republicans) Female = +7.5 (% of Females - % of Males) White = +41.6 (% of Whites - % of Blacks - % of Hispanics) Here are a few State trends that have key races from 2016 to 2018: Arizona +5.9 R Florida +6.2 R Colorado +0.7 R Georgia +0.3 W, +6.6 M North Carolina +4.6 d, +7 W, +6 M Nevada +2.1 R West Virginia +1.7 D For example, North Carolina means there is 4.6 % more Democrat turnout, 7% more white turnout, and 6% more male turnout in 2018 than 2016. Higher Democrat turnout is obviously good for Democrats, but a higher white and male turnout is more favorable to Republicans. Overall, since blacks vote in higher percentage for the Democratic candidate and males lean towards Republicans I give a slight advantage to Republicans even though there is a significant higher Democrat turnout, but North Carolina has a high Democrat populous. Conclusion: So far things good for Republicans they are up 5% in turnout, 2% in White turnout, and 6.5% in Male turnout. However, these numbers have been trending back towards the Democrats this week.
Monday, October 22, 2018
In fact, in Fiske v. Kansas, the Court overturned the conviction of Fiske for merely belonging to a socialist political party. Fiske did not pose any risk or threaten violence. Hence, Whitney would not have been convicted if she only belonged to the communist party, but instead she conspired to use violence to release of “political prisoners”. In Burns v. United States, the Court upheld the conviction of Burns. The case was similar to Whitney because it used the same California statute. It was a federal case because the offense occurred in Yosemite National Park. Like Whitney, there was proof that Burns taught and advocated the use of violence and sabotage against the local and state governments. Holmes joined the majority opinion in this case and Brandies was the lone dissenter. In all these cases (other than Fiske), the only person on the Court who held inconsistent views on free speech was Holmes. While a majority of the Justices upheld convictions and Brandies would dissent, Holmes would consistently change his mind even over similar cases. In Milwaukee Leader v. United States, the Court held that the United States Post Office could deny or charge an inflated rate for newspaper delivery if the substance in the newspaper violated the Espionage Act. Holmes’s dissent is puzzling because it conflicts and contradicts his earlier ruling in McAuliffe. One would conclude if a “police officer who talked politics could be excluded from public employment.” then it would follow a “seditious newspapers could be excluded from the mail”. In United States v. Schwimmer, the Court held that Congress could deny citizenship to an immigrant who refused to take an oath to fight and defend the country. The Constitution is clear and only Congress has the power of naturalization. The Court really has no jurisdiction over this case. Once again, however, Holmes and Brandies dissented even though in a past decision Holmes said: “It is admitted that sovereign states have inherent power to deport aliens, and seemingly that Congress is not deprived of this power in the Constitution of the United States.” Both Milwaukee Leader and Schwimmer violate the views that Holmes expressed in Davis where he said the government could prohibit any public speech. Why have Holmes’s views changed? Why was he contradicting earlier decisions and doctrines? Although he did not side with Brandies on all cases he did on most. I believe Holmes was influenced by Brandies and became his puppet on the Court, especially over free speech cases. Of course, Holmes believes the meaning of the Constitution changes over time. Holmes said, “we do not realize how large a part of our law is open to reconsideration up a slight change in the habit of the public mind.” Furthermore, according to Holmes judges have a “duty of weighing considerations of social advantage.” Moreover, Holmes wrote “The provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic living institutions transplanted from English soil.” Therefore, Holmes’s point of view on free speech may be merely evolving based on public opinion or because of certain economic conditions. This is ridiculous, but Holmes was a ridiculously poor Justice. In fact, modern interpretation of the First Amendment much more closely resembles the founders’ intent, it does not resemble the conjured-up scheme of doctrines and philosophies of Holmes’s imagination that failed to provide adequate free speech protection. I would argue that the words of the Constitution are just as precise as any mathematical formula and any alteration from that formula is merely activism that supplants the Constitution with a Justices prejudices and philosophies as law of the land. Freedom of speech and press would have minimal value if Holmes’s doctrines were practiced by modern courts. Speech would be restricted more than it would be free. Even in cases where Holmes sided in favor of free speech, the majority used his doctrines to side against free speech. And on many cases where Holmes dissented in favor of free speech he would join the words and doctrines written by Brandies (Holmes was silent). Brandies was much more consistent and committed to free speech and his doctrines live on today (especially his Whitney dissent). Holmes was not committed to free speech and his interpretations where hard to understand because he was very inconsistent in his rulings. Holmes’s free speech doctrines (clear and present danger) died out over 50 years ago. Holmes’s deference to state legislation was indeed more important to his doctrine of judicial restraint than protecting any natural rights including free speech of individual citizens. Some may argue that Holmes’s free-speech doctrine was way ahead of its time in protecting free speech. This too is not true. Many judges and legal scholars had doctrines which protected speech far more than Holmes (other than Louis Brandies): Learned Hand, Zechariah Chafee Jr., and Ernst Fruend to name a few that Holmes corresponded with over the issue of free speech. Fruend’s view on free speech is more of our modern interpretation: “No matter what the speaker’s intent was, speech alone was not sufficient basis for an attempt. An actual harm had to result.”
Wednesday, October 17, 2018
In Fox v. Washington Holmes found that a book written by Fox (“The Nude and the Prude”) was harmful speech that violated the First Amendment because it incited citizens to break the law (indecent exposure). This precedent, if enforced, would find any modern book, movie, TV Show, or video game as harmful speech. In Schenck v. United States Holmes found that Schenck violated the Espionage Act of 1917. In this case, since Schenck was found guilty of a conspiracy to obstruct enlistment in the armed services for WWI there was no need to find a proximity to harm, yet Holmes cites his “clear and present danger” doctrine in his decision which should have had no bearing on the case. Schenck proved that Holmes was not only wrong about free-speech, but he was confused and could not even follow his own doctrines. Frohwerk v. United States was a similar case because it too involved a conspiracy and that in and of itself forced the Court to uphold Frohwerk’s conviction. However, the cases were vastly different: Schenck was a high-ranking officer in his Socialist Party while Frohwerk was simply a poor working man carrying out the orders of his employers; Schenck targeted drafted Americans but Frohwerk did not attempt to reach Americans subject to the draft; evidence against Schenck involved both speech and a high volume of non-verbal speech (Pamphlets) but evidence against Frohwerk consisted of only a small circulation of non-verbal speech. Frohwerk was a pawn and took the fall for his bosses. Frohwerk had no harmful intent nor did he have any proximity to harm, but since it was a conspiracy case Holmes felt he had no choice but to uphold his doctrine and theory of legal liability. The Frohwerk decision was proof that the Supreme Court was providing the United States government increased war-time powers. In Sugarman v. United States the Court held that it did not have jurisdiction over the case. However, according to Holmes’s theory of legal liability he would have concluded Sugarman was rightfully convicted for violating the Espionage Act. Anything that hindered the United States war effort against Germany was said to be a violation of the Espionage Act. Sugarman was arrested for giving a speech condemning the draft at a Socialism Party meeting in which draft eligible men were present. Similarly, in Debs v. United States, the case and outcome were very close to that of the Sugarman case. In Debs, Holmes declared a clear and present danger of intent to obstruct the war effort. Debs, like Sugarman, was a socialist who condemned the war effort in many of his public speeches. But I find it hard to believe that Debs and Sugarman (who both represented very unpopular political parties) could convince but a few young men to commit a crime and dodge the draft. The only “clear and present danger” were the thoughts going Holmes’s brain. Holmes would change his views on free speech in Abrams v. United States and Gitlow v. New York. If Holmes had followed his previous theory of legal liability doctrine he would have upheld convictions in both cases. In his dissent Holmes found Abrams innocent of violating the Espionage Act. However, the majority used Holmes’s “clear and present danger” doctrine to uphold the conviction but for some reason Holmes went against his own doctrine. Even if the defense argument was factual that they did not want to hinder the war effort with Germany but merely wanted to enhance United States foreign policy with Russia, the group sought to incite labor strikes which would hinder the war effort. This case was probably more egregious than Schenck or Debs, but Holmes changed his views. There was truly a clear and present danger, maybe even more so than in Schenck or earlier cases decided by Holmes differently. In Gitlow, Holmes did not find advocacy of criminal anarchy was harmful (but any effort to affect the military draft was harmful). In fact, Holmes generally practiced “restraint” and almost always sided with police power (state legislation), but not in this case. Abrams and Gitlow are generally cited by liberals who revere Holmes and his defense of free speech. But Holmes’s “clear and present danger” doctrine upheld the convictions of both Abrams and Gitlow. The damage had been done, Holmes’s doctrines would be used for decades to restrict free-speech until it was abandoned by the Warren Court in the 1960s. But what changed in Abrams and Gitlow? Everything points to how Holmes should have decided these cases differently: Holmes had a contempt for natural rights, especially free speech and he saw no relationship between the law and morality (positivism); Holmes’s principle to conform to the powers of state government (judicial restraint); Holmes’s value of speech: the more valuable the speech the more protection and the less valuable the speech less protection; Holmes’s view that law is created to coerce citizens into compliance (judicial restraint); Holmes’s view of siding with majority factions (popular sovereignty and judicial restraint); Holmes’s positive view of war and its necessity; and Holmes’s theory of legal liability all pointed towards restricting the speech of Abrams and Gitlow. One argument was that Abrams and Gitlow were not popular cases with the mainstream media and the public and therefore there was not as much hysteria over the threat of communism compared to persons trying to hinder the war effort against Germany (Gitlow was after the war). Gitlow was a major case for another reason: It applied the First Amendment to the States. It is believed that Holmes supported applying the First Amendment to the States to create a landmark ruling and appease his superego. While the majority agreed that the First Amendment could apply to the States, Holmes thought by ruling against the legislative statute would make it clear the First Amendment did apply to the States. Remember, very rarely did Holmes rule against state legislative police power, so there must be some reason. Others would like to believe Holmes had a change of heart and all the sudden believed that free-speech and natural rights needed more protection. I would buy that argument if Holmes was consistent with all his free-speech cases after Abrams, but that was not the case. In Pierce v. United States, the Court upheld convictions for violations of the Espionage Act. This case, like Schneck, dealt with a conspiracy and the distribution of an anti-war leaflet. Despite the similarities in the cases Holmes changed his view and joined Louis Brandeis dissent. In Schaefer v. United States, the Court upheld the conviction using similar logic as it used in Pierce. Schaefer dealt with a German language newspaper which changed articles and editorials it reprinted from other news sources. Once again, Holmes joined Brandies dissent even though this case had a lower threshold of proof since it was a conspiracy like Piece, Schneck, and Debs. Yet, in another similar case, Gilbert v. Minnesota, Holmes concurred with upholding the conviction of Gilbert who gave speeches that were anti-American. In Gilbert, Brandies was the lone dissenter. What made this case so different than Pierce or Schaefer? First, it was a state and not a federal case. Holmes’s first inclination was to practice judicial restraint and uphold state legislation and rulings regardless of their consequences on individual rights even if the decision conflicts with his earlier precedent. Secondly, Holmes objected because Gilbert’s speeches were said to instigate the crowd and make them unruly. Gilbert precedent would deem any modern conservative political speech unconstitutional because they always instigate, upset, incite, and anger liberals. Gilbert was proof that Brandies saw that free speech could only be restricted by the federal government during war times, but Holmes saw that free speech could be restricted by both the federal government and police power in times of war and peace. These philosophies were further enforced in United States v. Burleson where both Brandies and Holmes wrote separate dissents. Brandies dissent points to a difference between war time and peace time speech and Holmes’s dissent merely points to the fact that one man, the Post Office General, would have too much power. This, once again, violates Holmes’s position is Davis. If the federal government could deny any public speech, then why couldn’t a Post Office General deny seditious speech as outlined by a federal law. Since only Congress could declare war, Brandies felt only federal law could impinge free speech and States had no power to impinge speech. Holmes disagreed and his deference to state legislation provided state legislations broad power to control free speech. In Whitney v. California, the Court upheld the conviction of Whitney because membership in a group that advocated violence regardless of harm was sufficient grounds to convict any subject for conspiracy. Although Holmes and Brandies concurred with the conviction they dissented saying that the California statute was too broad because it could merely target political groups. Brandies Whitney dissent (Holmes joined) is seen today as the modern doctrine for free speech: not “bad tendencies” or a “clear and present danger” used by Holmes. Brandies brought forth the idea that free speech and individual liberty are closely related. Brandies also introduced the idea that speech had to be inciteful to abridge the First Amendment. Brandies said “The fact that free speech is likely to result in some violence or in destruction of private property is not enough to justify suppression. There must be the probability of serious injury to the state.” Obviously Brandies free speech philosophies are much more protective than those of Holmes.
Saturday, October 13, 2018
In past publications, I have uncovered the evils of Oliver Wendell Holmes. Holmes was a bigot and racist as his decisions in Mueller v. Oregon (gender discrimination), Baily v. Alabama (racial discrimination), and Buck v. Bell (mentally challenged discrimination) illustrate. Holmes’s Lochner dissent was revered in history. Yet, in Bailey Holmes contradicts his views about contracts in Lochner to uphold a flagrantly racial discriminatory law. Holmes was on the wrong side of history in all these cases, even in Lochner. Liberal courts have used the substantive due process techniques introduced in Lochner to uphold abortion and gay rights. In fact, Holmes saw the Fourteenth Amendment as “perverted” and therefore, discrimination was never considered by Holmes in terms of equal protection under the law. Consider the case Interstate Consolidated Railroad Company v. Massachusetts where Holmes held that a law forcing the railroad company to charge students half price was constitutional. Holmes said the law could be upheld by calling it an education tax. However, this law was discriminatory because it was a tax against only railroad companies. A tax should be consistent and target all businesses equally. This decision also conflicted with Holmes’s decision in Pennsylvania Coal Company v. Mahon. In this case Holmes held that a Pennsylvania law was unconstitutional because it was a taking of private property without just compensation. A tax is also an unjust taking of private property when it targets just one business sector. Holmes had a “political attitude” towards the law because he believed that the law should follow the philosophies and ideas of popular sovereignty. Holmes felt that lawyers also needed to be experts at economics. This makes little sense, but it may help explain many of his decisions in Mueller, Lochner, Mahon, and Interstate Consolidate Railroad Company. Holmes felt his opinions favored what was economically best for America, not what was legally best. And since a majority of Americans had subpar views of women in the workplace, minorities, and the mentally challenged, Holmes felt it was the will of the people to discriminate against them. It was okay to discriminate so long as the power of the majority felt it was okay. Holmes’s view on speech was not much different. Holmes would defer to popular legislation to restrict speech more times than not. One of the great attributes accredited to Supreme Court Justice Oliver Wendell Holmes was that of being a protector and champion of free speech. This is far from the truth. In most free speech cases Holmes followed his theory of legal liability which includes distinguishing between harmful acts, attempts, and abuses of privilege. Harmful acts were particularly easy to identify. If a speaker’s act was harmful then the speaker was liable for their actions regardless of any intent or foresight. This followed the doctrine of “bad tendencies” utilized by the Court to determine what speech is protected and which speech is outside constitutional protection. For instance, Holmes would classify someone yelling fire in a crowded movie theatre as an example of harmful speech because it could incite a melee (I doubt this famous Holmes example would win any support in the modern Court). Many harmful speaking acts are privileged such as criticizing public officials and rights to association. However, that privilege may be rescinded if an unlawful conspiracy is charged against a group of association. In cases of conspiracy defendants are guilty if unlawful intent is proven regardless of any proximity of harm (a clear and present danger). In individual cases where no conspiracy exists, both unlawful intent and proximity of harm must be proven. An attempt is when liability may be imposed on non-harmful acts but only if the speaker intended harm and there was a proximity of harm. An attempt is the hardest to act of liability to prove. For example, in one case Holmes wrote “If a defendant had gone no further than to buy a box of matches for the purpose [to start a fire], he would not have been liable”, but if the defendant went to the place he intended to start a fire and changed his mind he would then be guilty of attempted arson. By holding free speech to same standard as his theory of legal liability, Holmes decreased free speech rights and by no means expanded or protected free speech rights. McAuliffe v. New Bedford was a case decided by Holmes while he sat on the Massachusetts Supreme Court. The case involved a statute where a policeman whose political free speech was restricted while he held a public service job. Holmes declared “The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.” This statement cannot be more wrong because all people have a right to pursue any lawful profession. Similarly, in Laurel Hill Cemetery v. San Francisco Holmes said a law that denied cemeteries within the city limits was Constitutional. Once again, Holmes sided against the right of the individual to pursue a lawful occupation at the expense of discriminatory state or local legislation. In Holmes’s view the burden of proof was on individuals to prove state laws were not needed instead of on state legislators to prove why the laws were essential especially those that violated the rights of an individual. And the only reason a state or municipality needs to pass a law, in Holmes view, was because it was what a majority wanted. In Holmes view, there was no need to show a compelling state interest for laws that violate the rights of individuals. Holmes ignores the Constitution and its view to protect the natural rights among citizens equally without bias to majorities (this is how practices like slavery start). In Holmes view judges should uphold dumb, stupid, harmful, or discriminatory laws if that is what the majority wants. This type of thought is just dangerous. One person’s rights are not more important than another person’s rights merely because one belongs to a majority. But this is precisely what Holmes decides in Laurel Hill and McAuliffe. Remember, Holmes said, “The whole collectivist tendency seems to be toward underrating or forgetting the safeguards in the bill of rights….” In Commonwealth v. Davis (also decided while on Massachusetts Supreme Court), Holmes’s opinion declared that a State has the right to forbid any public speaking in the streets and in parks. Of course, these early rulings by Holmes were perverse and have absolutely no bearing in modern society. If Holmes had his way, the government would employ the speech police to keep Americans in line. In Hanson v. Globe Newspaper Company Holmes found the newspaper libel when it erred in writing critically about H.P.H Hanson as H.P. Hanson. The real H.P. Hanson filed suit. Even though there was no intent to harm H.P. Hanson, false statements of fact about Hanson made the newspaper libel in Holmes’s view. Modern courts would never come to the same conclusion. In this instance, the courts would protect the newspaper from a suit since it was an accident and could be corrected by a simple statement clearing the plaintiffs name. It is true, that false statements of fact have no First Amendment protection under modern jurisprudence. However, in this case, the statements may have been false, but they had a lawful intent (not unlawful intent). The paper simply made a mistake. If every mistake made a newspaper liable to a suit then there would be no Freedom of the Press. In Patterson v. Colorado Holmes found an ex-Senator’s editorial about the Colorado Supreme Court was in contempt. This case was about whether the government could enforce prior restraint on free-speech. Even though Patterson’s speech was truthful, his editorial mentioned both current and possibly future cases before the Colorado Supreme Court. Hence, Holmes found Patterson was guilty obstructing justice and found him in contempt. However, the truthful claims by Patterson revealed potential corruption and this should never be a violation of free speech. Why would any whistleblower ever come forward if they could be found in contempt while their truthful statements are ignored? This is another bad decision because it fails to protect one of the most important forms of speech: truthful speech which identifies a crime or the violation of a person’s rights. However, in Near v. Minnesota, the Court found prior restraint of free speech unconstitutional even if the speech was untruthful or had malicious intent. Future letters indicate that even Holmes admitted he erred in Patterson. In fact, Holmes’s change of heart in his opinion for Toledo Newspaper Company v. United States was proof that Holmes knew he was wrong in Patterson. By Brandenburg v. Ohio in 1969 (only literal incitement fell outside of First Amendment protection) all of Holmes’s free speech doctrines would be abandoned. Even during the Red Scare of McCarthyism during the 1950s free speech was not restricted to the degree of Holmes’s free speech doctrines.
Monday, October 8, 2018
CBS ran a story about how Iceland “eliminated” downs syndrome from its population and many other countries are not too far behind. The word “eliminated” is not the correct term, the correct term is “killing” down syndrome through abortion. This is further proof that abortion which was founded on the principles and philosophies of eugenics is still following these same practices in modern times. The article’s title: “What Kind of Society Do You want to Live In: Inside the Country where Down Syndrome is Disappearing”. The cleansing of society of defectives was what eugenics was founded on and it obviously still exists today. What’s even more troubling is that test used to determine downs syndrome on a fetus is at best 85% accurate. That means 3 out of 20 times the test is wrong with a false positive or a false negative meaning the abortion of a fully healthy baby is highly probable. CBS said “With the rise of prenatal screening tests across Europe and the United States, the number of babies born with Down syndrome has significantly decreased, but few countries have come as close to eradicating Down syndrome births as Iceland.” Moreover “Since prenatal screening tests were introduced in Iceland in the early 2000s, the vast majority of women -- close to 100 percent -- who received a positive test for Down syndrome terminated their pregnancy.” Although the article states that most persons born with down syndrome live a “normal” life it portrayed some alarming statistics “Other countries aren't lagging too far behind in Down syndrome termination rates. According to the most recent data available, the United States has an estimated termination rate for Down syndrome of 67 percent (1995-2011); in France it's 77 percent (2015); and Denmark, 98 percent (2015). The law in Iceland permits abortion after 16 weeks if the fetus has a deformity -- and Down syndrome is included in this category.” I have met several down syndrome children and adults. My only observation about them is that they are the happiest people I have ever met without a bad bone in their bodies. They do not have any feelings of hate or vengeance and they are not argumentative. For some reason, down syndrome persons are immune to being corrupted by the evil or the polarizing politics in society. We need more people with the compassion, sincerity, and caring of down syndrome persons, not less. Where do we draw the line? Is it okay to abort females, like in China? Is it okay to abort any fetus with a defect such as a missing finger? What is to stop the government from compelling abortions of “defective” fetuses? After all, wouldn’t this control healthcare costs especially for a single payer system? How is aborting down syndrome fetuses any different than trying to compel Hispanics, African-Americans, or the poor to get abortions? Maybe I am crazy but I view all humans as being equal. It is dangerous when we start creating a hierarchy of acceptable persons. This is no different than what Nazism was founded upon: creating a “perfect” race. All persons are highly flawed for whatever reason, no one is even close to being perfect. Life is about working to become better persons since we are all defective in many ways. Life is not about eliminating or killing off those who do not meet our accepted definition of a person. This is dangerous and scary precedent since history has a way of repeating the same errors it has made in the past.
Tuesday, October 2, 2018
I always dreamed of becoming a State Champion at something, it could have been anything: athletics or academia. Since my athletic prowess was limited, the closest I ever came was in my eighth-grade math club and that was not very close. Like most kids I dreamed of being a pro athlete and even making the Olympic team and winning a gold medal. All kids dream, but those dreams very seldom become a reality. In 1979, I was a freshman in high school and a kid by the name of Keith Alston from neighboring Neptune High School won the state wrestling championship (Winning a wrestling state title in New Jersey was very hard since there was only 1 champion for all schools regardless of size). I read the article and dreamed about how cool that was and how lucky he was. I turned the page and there was a short article about how Alston died in a car accident coming home from the event. For years, I debated if Alston would have changed his destiny by giving up that state championship in exchange for the rest of life – about another 60 to 70 years. I don’t think Alston would have changed his destiny because he reached the pinnacle of his sport, a sport he loved and he trained so hard to excel. It changed my feelings about winning a state championship, I do not think there was anything out there more important than life until I found cycling because this sport comes with some risks. After winning a state masters cycling championship (Colorado and Wyoming) in the time trial it made me truly understand the sacrifice, love, and pain associated with athletics. People do not understand the love people may have for a sport and how much suffering it takes to win a state title. I am certain Alston made the choice for his destiny. Why? Because I take some of the same risks every day. When I train outside I know there is a chance I may not see another day. Cars do not see you and even if they do they do not slow down or give you room. I go fast most days, and although I am going at or below the speed limit, when people see a cyclist they are not expecting them to be going 25, 30, or even 40 MPH so they pull out in front of me. I avoid at least one close call every week, yet I continue to ride and train. It would seem the risk is not worth it. Each year dozens of cyclists are killed or maimed from car accidents in Colorado alone. I try to mitigate risks by cycling on less busy roads, cycling at off peak hours, and wearing bright clothing but nothing will completely eliminate the risks. Why is it so important to risk life and limb? I do not exactly know. I believe being diagnosed with a neurological disorder changed how I view life. I literally thought I had ALS and would be dead in a few years. After ALS and MS were ruled out, I realized I was lucky to be diagnosed with cramp fasciculation syndrome. What I have is no picnic, but I have been given a second chance at life. Although exercise intolerance is one of my symptoms, I fight through it for one last chance to achieve some of my childhood dreams. The pain of training on top of a neurological disorder is extremely intense. I keep telling myself I will quit once I reach my full potential, but each day and week I keep getting better. I do not understand it and more importantly my doctors do not understand it. Yes, you can improve and get better at certain sports even in your 50s, 60s, and 70s. Each year I accomplish all my goals. It is amazing, I have never had so much success at anything. I may not have ever been an Olympian or raced in the Tour de France but I race against a person who has accomplished these feats – Norman Alvis. Alvis was one of America’s best cyclists outside of Greg LeMond in the 80s (and 90s). Alvis was a U.S. cycling champion and held the one-hour time trial record (on a track) for nearly 20 years (it was just broken last year). Alvis currently holds the U.S. record for the one-hour time trial for the 50+ group. He rode the Tour de France and Italia multiple times. His team finished 10th for the team trial in the 88 Olympics. Alvis beat me by a mere 7 seconds in an 8-mile time trial earlier this summer (16:48 to 16:55). I may not have accomplished my dreams of the Olympics, but I am holding my own racing against a former Olympian. The success of Greg LeMond generated dreams of riding in the Tour, and although that did not happen, I am holding my own against a guy who did. This is just as good as accomplishing that dream. Please do not give up on your dreams and goals. No matter how hard and difficult persistence and hard work generally pay off. I am not saying dreams are worth dying over, but accomplishing them before you die is well worth some risk. Unfortunately, it took a situation where I thought I was going to die before I truly pursued some of my dreams. We should not require a wake-up call before we show some urgency to live life to its fullest.
Wednesday, September 26, 2018
John Rutledge represented South Carolina as a delegate at the Constitutional Convention in 1787. He may not have had the influence of a Madison over the overall document, but Rutledge was important because he represented the slave South and was able to secure compromises that would protect the institution of slavery. Rutledge was put in charge of the Committee on Detail and he led four other delegates while the rest of the delegate broke for an eleven-day recess. The goal of the Committee was to “properly dress” the “principles and outlines of a system” of government that was already agreed to by the delegates. In other words, it was the Committee’s responsibility to write the first draft of the Constitution. However, Rutledge would use the committee to implement new resolutions and ideas that were never discussed and agreed upon by the convention: especially on slavery. The committee was to take all agreed to resolutions and formulate a plan of government. But Rutledge saw an opportunity and seized on it. Also on the committee were Nathaniel Gorman of Massachusetts, Oliver Ellsworth of Connecticut, James Wilson of Pennsylvania, and Edmund Randolph of Virginia. Four of these men were distinguished lawyers, Randolph would be Attorney General and Wilson, Ellsworth and Rutledge would serve on the Supreme Court. Wilson and Rutledge already crafted the three-fifths compromise earlier in the convention. The three-fifths compromise allowed slaves to be counted as three-fifths of a person for allocating representatives for the House of Representatives and also for calculating direct state taxes. Randolph was indecisive so it is easy to see how the slave owner could be influenced by Rutledge. Wilson was willing to compromise over slavery as his three-fifths proposal with Rutledge demonstrated earlier in the convention. Ellsworth was an anti-slavery delegate, but he helped align a small-states and slave-states compact at the convention so small states could gain equal representation in the Senate by supporting passage of the three-fifths compromise. Ellsworth would argue slavery is an issue to be decided by the States and it should be of no concern to the National government. Ellsworth wrongly believed that morality would eventually rule the day and the institution of slavery would eventually die. Ellsworth conceded if the issue over slavery was a moral one then all slaves should be free, but that was not what was being contested at the convention. The Committee defined eighteen enumerated Powers for Congress. Wilson, responsible for the final committee draft and a proponent for a strong national government did not favor limiting Congress to enumerated powers so he drafted the “necessary and proper” clause. Wilson also included eight limits on State governments. Wilson also rewrote the Supremacy clause to make sure Congress and the Courts had some power over the States. Wilson was instrumental to define federalism in how State governments and the National government would be reconciled in the Constitution: both were sovereign, but the national government can trump state governments. The committee also introduced the resolution that slave trade could continue perpetually without any import tax on slaves. Eventually the convention agreed to a twenty-year limit with a maximum ten-dollar tax per slave. This was important because it allowed another 170,000 slaves to be imported from Africa to grow the institution before President Jefferson ended the practice after the twenty-year moratorium ended. The Rutledge committee also introduced the navigation acts (interstate and foreign trade) which declared all legislation on the subject must be approved by a two-thirds majority in Congress. This was done to protect the South from high freight costs. In a compromise to end the two-thirds majority the South garnered its final slave provision: the fugitive slave clause. Rutledge had succeeded in obtaining three key slave protections: the three-fifth clause, the slave import clause, and the fugitive slave clause without even mentioning the word “slavery” in the text. The North felt they did well by compromising on these issues, but the fact remains that Rutledge “hijacked” the Constitution. The North compromised over issues that were never agreed to by the full convention. The three-fifths clause was the key provision. With the extra 10 to 30 seats the South would garner over the next 50 years, it changed history: Ten of the first fifteen presidents were slaver owners (for instance, John Adams would have defeated Jefferson in 1800 if not for the extra Southern electors); nineteen of the first thirty-four Supreme Court Justices were slave owners; and Southerners held the Speaker of the House position 35 of the first 50 years. This clause wielded the South with power to sustain the practice of slavery. Since the South controlled Congress, they always failed to pass a direct State tax that was to offset their Representative gains. John Rutledge’s coup d’état at the National Convention was slick because he accomplished his goals single handedly. He sided with small states and then hijacked the first draft of the Constitution. The rogue Rutledge introduced new provisions into the Constitution that were never discussed or approved by the states or delegates. He then compromised on these issues to garner even more power for the slave wielding South.
Sunday, September 23, 2018
In my view both slavery and abortion are evil. Of course, many would contend that that only slavery is evil. I am of the impression that abortion may be worse than slavery for the following reasons: Though brutal and inhumane, slavery was not genocidal but abortion is genocidal. After all, slaves were of no value dead. Since Roe v. Wade (1973) over 60 million babies have been aborted. That is the equivalence of nearly 20% of the US population today. That is right, one in five Americans do not exist because they were aborted. In the history of America, the number of abortions can be estimated at more than 100 million. And this does not include abortions using birth control contraceptives that act as abortifacients. Anywhere from 1.5% to 3% of fertile women obtain an abortion each year. Over the history of slavery in America there have been over 20 million slaves. At the end of the civil war, there were nearly a half million slaves in Virginia alone. At the first U.S. census in 1790 the number of slaves in the United States was approaching 700,000. Abortion is final, bondage in slavery was not necessarily the final outcome. About 6 to 7% of slaves earned their freedom through emancipation by the owner, escaping, payment, or even favorable court rulings for being brought to free states for a considerable time period. And there is little corroboration of facts or statistics to suggest that ancestors of slaves living in the U.S. would have been any better off, as a whole, if slavery did not exist and they lived in their Native Africa. Even poor African-Americans are afforded welfare and other entitlement benefits that would hardly be available in most African nations. Although discrimination still exists, modern America views African-Americans as a protected class of citizens subject to preferential treatment for education and jobs. Throughout the history of slavery many slaveowners saw it as a necessary evil, but did not agree with the practice. Justice Taney who handed down the controversial Dred Scott decision freed his slaves decades earlier. Most of the Virginia founders struggled with the issue of slavery. Madison, Washington, Jefferson, Mason, Randolph, Monroe, and Wythe all owned slaves but talked about institution as being “cruel” and how it “tramples on the rights of human nature”. The Declaration of Independence and the Constitution drafted and signed by many of these same men never mentions slavery and were important documents that eventually led to the end of the practice of slavery. Southern courts routinely ruled in favor of slaves gaining their freedom when they were moved to free states or territories for a long period of time. Southern judges owned slaves, but they too realized the institution was a necessary evil. Abortion on the other hand has always been seen as being both moral and just because it is mistakenly considered a Fundamental Right under the Constitution. Remember, slavery was also mistakenly seen as a Fundamental Right (property) under the Constitution in the Dred Scott decision (1857). Abortion rights advocates do not see the activity of abortion as being the least bit controversial. They do not see anything wrong with abortion being used as a tool for population control or for eugenics ideas and philosophies the movement was founded upon. The bottom line is it was not uncommon for slave owners to be morally and ethically conflicted whereas abortion advocates seem to have no moral conscience or ethical compass. Slavery discriminated against African-Americans, but abortion also discriminate against African-Americans. African-Americans make up 13% of the population but make up 42% of the abortions. Abortions mostly discriminate against the poor who make up over 75% of all abortions. Maybe abortion seems to be a better option than a lifetime in bondage. But the lives of slaves did not go for naught. The sacrifices made by slaves was just as important to US and World history as was the sacrifice of American soldiers fighting in not only the Civil War to free slaves, but any war to overcome the evils of Nazism, communism, or terrorism. Unfortunately, abortion was founded under the same ideals and principles of Nazism, socialism, and anarchism. It is sad that we never learn our lessons from history and hopefully some day we will come to the realization that the sacrifice of over a hundred million babies is enough genocide and we will finally put an end to the practice of abortion except under extreme circumstances (which compromise of less than 2% of all abortions).
Tuesday, September 18, 2018
Ziegler contends that the abortion movement was not race driven and the modern movement abandoned its radical view of population control. Let’s say Ziegler is right, the abortion movement deemphasized radical philosophies such as population control and racial overtones following the Roe decision. This does not mean these are no longer supported views, it simply means these radical views were no longer needed for tactical support of the movement since it already won in the Supreme Court. Besides, a movement founded on eugenics, racism, and population control does not make it okay if those views are deemphasized in the modern movement. What if slavery still existed but modern laws protected slaves so owners could not beat them; slaves had to be paid a fair wage; and slaves had more rights such as the right to vote. Would this make a “modern” slavery movement any more acceptable? Of course not. Abortion, like slavery, is stigmatized in our history and for good reason. However, no one can dispute the fact that abortions affect African-Americans and the poor disproportionately. African-Americans make up 42% of all abortions, but consist of only 13% of the population. This was the vision and mission of Margaret Sanger and the pre-Roe movement which has come to fruition. I do not see any pro-abortion rights persons concerned about this statistic nor do I see them concerned about how abortion may violate the Equal Protection clause because it disproportionately affects minorities. Sure, the Court found abortion legal through substantive due process as a right (not in support of racism or population control). But the Court also found slavery legal in Dred Scott v. Sanford (1857) via substantive due process. In other words, anything can be found legal via substantive due process depending on the opinions of the Justices sitting on the bench at the time. The bottom line is that abortion and slavery were both founded on hate, discrimination, and other radical views and they are therefore not much different. Abortion rights advocates were still pushing ideas and philosophies used by Nazi Germany 30 years after World War II. Consider that for a moment: the feminist abortion movement was precisely based on “war crimes” that nearly exterminated a race of people. And if the Supreme Court did not side with the abortion movement in Roe, these ideas and philosophies would have continued to be used for many more years. The abortion movement was and is radical. It was founded and supported by socialists and anarchists. Radical opinions, ideas, and philosophies may have been deemphasized but they still exist and that does not change the fact abortion was founded and practiced under radical terms. Consider the below interview with Ruth Bader Ginsberg. In a 2012 interview Ruth Bader Ginsberg gave the following responses to questions about feminism, abortion, population control, and eugenics: Q: If you were a lawyer again, what would you want to accomplish as a future feminist legal agenda? JUSTICE GINSBURG: Reproductive choice has to be straightened out. There will never be a woman of means without choice anymore. That just seems to me so obvious. The states that had changed their abortion laws before Roe [to make abortion legal] are not going to change back. So we have a policy that affects only poor women, and it can never be otherwise, and I don't know why this hasn't been said more often. Q: Are you talking about the distances women have to travel because in parts of the country, abortion is essentially unavailable, because there are so few doctors and clinics that do the procedure? And also, the lack of Medicaid for abortions for poor women? JUSTICE GINSBURG: Yes, the ruling about that surprised me. [Harris v. McRae -- in 1980 the court upheld the Hyde Amendment, which forbids the use of Medicaid for abortions.] Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don't want to have too many of. So that Roe was going to be then set up for Medicaid funding for abortion. Which some people felt would risk coercing women into having abortions when they didn't really want them. But when the court decided McRae, the case came out the other way. And then I realized that my perception of it had been altogether wrong. What does this mean? It means that population control and racism were at the forefront of the abortion movement. If the abortion movement was not about eliminating the poor and minorities than why was there a big push to have Medicaid pay for abortions? Why would Ginsburg (ACLU attorney representing women’s rights at the time of Roe) admit as much? And the fact that minorities and the poor obtain abortions at a much higher rate than other classes of people demonstrates that abortion was and is readily available and affordable to those in need (I believe this is what Ginsberg is talking about when she says her perception was wrong).
Thursday, September 13, 2018
Ziegler on Planned Parenthood, birth control, abortion, and race: “It was not until the late 1960s, however, that controversy about the racial politics of birth control and abortion became intense. There were several reasons for this shift. First, over the course of the 1950s and early 1960s, efforts to curb population growth enjoyed substantial popular support. In the same period, the movement for the legalization of abortion had picked up steam, attracting the official endorsement of Planned Parenthood in 1968. During this time, a militant streak within the civil-rights movement became more visible and politically significant. Organizations like the Black Panthers contended that birth control and abortion were part of a plan to eliminate poor people of color. Finally, the anti-abortion movement began to organize, connecting the abortion-legalization movement to eugenics and racism. These were the events that made the racial politics of abortion in the early 1970s so combustible.” From the previous paragraphs it seems anti-abortion advocacy groups had good reason to tie the legalization of abortion to eugenics and racism. Ziegler on Planned Parenthood, abortion, race, and population control: “Under Guttmacher's influence, members of Planned Parenthood primarily justified abortion in consequentialist terms, invoking, among other things, the importance of population control. In a pamphlet on the benefits of legalizing abortion in New York, for example, Planned Parenthood stressed such arguments, arguing that legalization would result in lower rates of population growth and illegitimacy and decreased welfare expenses. Similar rhetoric appeared again in a 1969 interview with the New York Times, when Guttmacher argued that abortion reform was a problem closely related to the "population explosion" and contended that population-control efforts, including abortion, were intended to reduce poverty, not eliminate the poor. In 1970, in praising repeal acts in New York and Hawaii, Guttmacher also emphasized "the realization of the population problem. "We're now concerned more with the quality of population than the quantity," he told the Associated Press, in commenting on efforts to reform abortion laws.” Concern over the quality of the population was a eugenics philosophy and to say you want to use abortion to reduce poverty but not eliminate the poor is a very hypocritical statement. Also, the legalization of abortion did nothing to reduce the per capita expenditures on welfare (welfare continues to escalate year in and year out) even though abortion disproportionately affects the poor. Ziegler on NARAL, abortion, and population control: “NARAL also framed abortion access partly by stressing concerns about population control. Along with arguments that abortion was a privacy right, the organization's official debate handbook included a whole category of arguments related to overpopulation. When faced with arguments that Beethoven would not have been born if people used legal abortion for eugenic purposes, NARAL activists were advised to reply that "possibly Hitler wouldn't have been born either." Other proposed claims asserted that "[l]egal abortion will decrease the number of unwanted children . . . and possibly subsequent delinquency, drug addiction, and a host of social ills." A final population control argument stated that "[s]ince contraception alone seems insufficient to reduce fertility to the point of no-growth, . . . we should permit all voluntary means of birth control (including abortion)." Of course, delinquency, drug addiction, and social ills mostly affect the poor and minorities and not the affluent. So, abortion for NARAL was a way to implement eugenic theories on the less fortunate and minorites. Ziegler on NOW, abortion, and population control: “Even the National Organization for Women (NOW), a major feminist group, worked closely with population controllers and, for tactical reasons, borrowed some of their ideas. In November 1970, Christopher Tietze of the Population Council asked NOW President Wilma Scott Heide for NOW volunteers to participate in a study on the health effects of abortion. In writing to NOW state affiliates, Heide recommended participating, suggesting that "[t]he request from the Population Council represents the fact that we are viewed as responsible and stable." While some feminist proposals, like the Equal Rights Amendment, enjoyed substantial support in the early 1970s, population-control legislation, as we have seen, also enjoyed bipartisan support and popular approval. Heide's wish to tie her organization to the population control cause made strategic sense. Indeed, Heide also testified about population control in Congress, arguing that women's rights and overpopulation were inextricably linked.” The last sentence is key to note how women’s rights and overpopulation are linked. Hence, a woman’s right to abort a child because of overpopulation concerns is completely natural, respected, and desired or woman’s rights are not truly being practiced. The following statement by Ziegler is not entirely true: “Roe acknowledged powerful arguments about race that had informed debate inside and outside of the Court, but the justices made no other reference to concerns about race, poverty, abortion access, or equal protection. Indeed, a few years later, in Maher v. Roe (1977) and Harris v. McRae (1981), the Court upheld laws denying public funding for abortion, rendering seemingly irrelevant any constitutional claim that abortion restrictions disproportionately impacted poor women.” The Court, did in fact, consider overpopulation, race, and poverty when deciding Roe for several reasons. First, Justice Potter Stewart saw “abortion was becoming one reasonable solution to population control. Poor people, in particular, were consistently victims of archaic and artificially complicated laws.” Justice Blackmun said, “In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to simplify the problem.” Secondly, abortion afflicts both the poor and minorities at a much higher rate than any other class of persons. African-Americans make up 42% of all abortions but only consist of 13% of the population. Therefore, even without federal funding, minorities and the poor are afflicted by abortions disproportionately. With federal funding, these numbers would only be even more disproportionate.
Sunday, September 9, 2018
There is one underlying common thread when it comes to the radical feminist movement for contraceptive and abortion rights: population control. Eugenics, contraception, and abortion: all these ideas were founded on the principle of population control hidden under the guise of women’s rights and women’s right to choose. What’s worse, the ideas and concepts put forth by radical feminists are discriminatory and intentionally target the poor and minorities. Margret Sanger, the founder of Planned Parenthood, was not just a supporter of eugenics but she favored population control of the poor, African-Americans, diseased, feeble-minded, criminals, and any other person who is “undesirable”. The three Supreme Court cases leading to a right to privacy and contraceptive and abortion rights were influenced by population control: Griswold v. Connecticut (1965), Eisenstadt v. Baird (1972) and Roe v. Wade (1973). Griswold was a Planned Parenthood case. In Baird, William Baird was charged with a felony for distributing contraceptive foam after lectures on birth control and population control at Boston University. Below are some Margret Sanger quotes: On blacks, immigrants and indigents: "...human weeds,' 'reckless breeders,' 'spawning... human beings who never should have been born." Margaret Sanger, Pivot of Civilization, referring to immigrants and poor people. On sterilization & racial purification: Sanger believed that, for the purpose of racial "purification," couples should be rewarded who chose sterilization. Birth Control in America, The Career of Margaret Sanger, by David Kennedy, p. 117, quoting a 1923 Sanger speech. On the right of married couples to bear children: Couples should be required to submit applications to have a child, she wrote in her "Plan for Peace." Birth Control Review, April 1932 On the purpose of birth control: The purpose in promoting birth control was "to create a race of thoroughbreds," she wrote in the Birth Control Review, Nov. 1921 (p. 2) On the rights of the handicapped and mentally ill, and racial minorities: "More children from the fit, less from the unfit -- that is the chief aim of birth control." Birth Control Review, May 1919, p. 12 On the extermination of blacks: "We do not want word to go out that we want to exterminate the Negro population," she said, "if it ever occurs to any of their more rebellious members." Woman's Body, Woman's Right: A Social History of Birth Control in America, by Linda Gordon On respecting the rights of the mentally ill: In her "Plan for Peace," Sanger outlined her strategy for eradication of those she deemed "feebleminded." Among the steps included in her evil scheme were immigration restrictions; compulsory sterilization; segregation to a lifetime of farm work; etc. Birth Control Review, April 1932, p. 107 On adultery: A woman's physical satisfaction was more important than any marriage vow, Sanger believed. Birth Control in America, p. 11 On abortion: "Criminal' abortions arise from a perverted sex relationship under the stress of economic necessity, and their greatest frequency is among married women." The Woman Rebel - No Gods, No Masters, May 1914, Vol. 1, No. 3. Mary Ziegler’s article “Roe’s Race: The Supreme Court, Population Control, and Reproductive Justice” (2013) published in the Yale Journal of Law and Feminism is a great article on the role of population control, race, and socio-economic status on abortion. Although I do not agree with her conclusions that race had no impact on the abortion movement and population control theories have been abandoned by the modern movement, her historical analysis is very good. Ziegler on Planned Parenthood and crime in the 1940s: “Since 1947, the Planned Parenthood Federation of America ("Planned 47 Parenthood") had been an eager participant in the delinquency [criminal activity] debate. At a 1947 conference held by the organization, several speakers suggested that unwanted children were a prime cause of delinquency. Equating unplanned with unwanted children, Planned Parenthood speakers concluded that unplanned pregnancies led to bad mothering, as overburdened women could not financially or psychologically provide adequate care for their children.” To equate unplanned with unwanted is wrong. Many families consist of children that were the result of a surprise pregnancy and they are loved no less than their siblings. Ziegler on Planned Parenthood, the poor, and race: “Some Planned Parenthood leaders sided with those who attributed delinquency to bad parents and the dysfunctional values held by the poor. In a 1962 letter to the editor of the New York Times, for example, Planned Parenthood leader Harriet Pilpel criticized a federal grant given to New Haven, Connecticut, a community known for its hostility to family planning. Pilpel asserted that two of the most important causes of delinquency were "overcrowded families and overburdened parents without sufficient means" and "unwanted children." As we have seen, Planned Parenthood's arguments could have troubling racial implications. The organization focused on unwanted children and pathological parenting in poor African American communities, suggesting that minority "culture" created the delinquency that the government sought to prevent.” Once again, these are Margaret Sanger and eugenic philosophies from decades earlier. These theories will comprise any reason to argue for the elimination the African-American race.
Monday, September 3, 2018
The pro-abortion movement was angered by the refusal of Justices to practice stare decisis: to honor the precedent placed forth by Roe v. Wade. Most Justices practice stare decisis to a degree, but remember liberal Justices did not practice stare decisis to honor their own rulings in Williamson for Griswold and Roe. All that being said, stare decisis did in fact save Roe. There was no other reason for Justices to uphold Webster v. Reproductive Health Services and Casey v. Planned Parenthood and not overturn Roe (O’Connor, Souter, and Kennedy saved Roe). Let’s face the ugly fact that Roe survived based on “compassion” towards women and not the law. What’s more, the trimester compromise founded in Roe was becoming unworkable as Sandra Day O’Connor noted “medical advances for safer late term abortions were colliding with earlier survival rates”. Abortion law, as decided in Roe, was becoming unworkable to have arbitrary divisions of pregnancy terms to govern a supposed Constitutional Right. For this reason, regulation for abortion moved from strict scrutiny in Roe (the state had to prove a compelling state interest) to a rational basis standard for abortion funding to a newly defined “undue burden” standard for abortion regulations after Webster and Casey. The burden of proof on the state is far less severe for “undue burden” than for a compelling state interest. This too is further proof that abortion is not a Fundamental Right. No Fundamental Right would be treated with such a low burden of proof. For instance, the reason hate speech is Constitutional is because freedom of speech is a Fundamental Right protected by the Court using strict scrutiny (a compelling state interest is needed to deny freedom of speech or other Fundamental Rights). I would also argue that entitlements are not only not Fundamental Rights, but they are unconstitutional. Consider the Fifth Amendments Takings Clause which states the government can take private property only for public purposes with just compensation. Taxation for entitlement spending is taking private property (money) for private reasons (welfare) without just compensation. The Sixteenth Amendment passed the Income Tax and that would allow the government to take property (taxes) without just compensation. However, the Sixteenth Amendment does not allow the government to use property (taxes) for private reasons such as welfare. The federal government can use tax money for public things such as transportation, infrastructure, military, post office, etc. The Court has given state and federal governments more power by allowing them to take private property for private reasons if it also suits a public purpose (Kelo v. New London). But does welfare really suit a public purpose? As welfare distributions go up, the poverty rate remains the same. Welfare is not helping any public cause (i.e. more jobs and less poverty). For these reasons, I believe ALL welfare programs are unconstitutional. Pro-abortion rights advocates objected to First Amendment restrictions placed on federally funded health centers. Federal law placed a gag-order on doctors not to discuss abortion options with their patients. The Court held this was legal because patients could get abortion advice at privately funded institutions. I personally disagree with this decision, but I also do not agree with the Court and pro-abortion advocate restrictions on informing potential abortion patients with advice on other avenues to pursue other than abortion does not place an “undue burden” on obtaining an abortion. Patients should have all options available to them to make an educated decision. Personally, I believe both sides of the abortion movement are guilty of trying to restrict the other sides First Amendment Rights. The Supreme Court weighed in on numerous First Amendment issues surrounding abortion with are outlined below. In Bray v. Alexandrea Health Clinic (1993) pro-abortion rights advocates wanted to impose the 1871 Ku Klux Klan Act (which prevented violence against freedmen) against pro-life protestors. The Court did not concur because they saw the issue of freedman and abortion as completely mutually exclusive circumstances (one was racist and the other was a difference between morals and ethical standards). Besides, generally when there is violence at protests both sides are guilty of these actions (it takes two to tango). In NOW v. Joseph Scheidler (1994) pro-abortion rights advocates wanted to impose the RICO Act (used against racketeer and corruption for crime organizations against pro-life protestors. In this case, the Court incorrectly held the RICO Act could be used in some instances against pro-life protestors. In Madsen v. Women’s Health Center (1994) the Court held that a protest perimeter around individuals going to an abortion clinic was Constitutional even though the dissent argued that the protesters were not engaging in any illegal activity. In Schenck v. Prochoice Network (1997) the Court held that floating perimeters around individuals entering a clinic were unconstitutional, but fixed buffers at the entrance were legal. In Hill v. Colorado the Court upheld fixed perimeters around a clinic entrance but the dissent once again held that these laws were unconstitutional because they only applied to anti-abortion speech. Remember, the Court held that burning a cross in a minorities yard and Nazi parades are all legal forms of free speech subject to no restrictions, but abortion protests are subject to restriction. Congress passed the Freedom to Access Clinics Act to eliminate violence and coercion but what it really accomplished was to silence those trying to educate persons seeking an abortion on federal assistance mothers may qualify for and adoption information. Many state laws to this day exempt doctors and nurses from performing abortions or prescribing abortifacients on moral grounds. In Stenberg v. Carhart the Court narrowly upheld partial birth abortion when the fetus is moved into the birth canal to perform the abortion. In Gonzales v. Carhart the Court reversed course and said partial birth abortions were illegal. The Court did not overrule Stenberg, but said that Stenberg was more ambiguous then the federal statute in Gonzales. Hull and Hofer’s book brings up every instance of anti-abortion violence and the killing of abortion doctors. No one should condone this, but to think the pro-abortion side of the equation is not guilty of violence is just mind boggling. After all, it takes two opposing sides to have violence at protests. Hull and Hofer make no mention of late term abortions of viable babies which to many is infanticide. Hull and Hofer make not mention about how abortion disproportionately targets the poor and minorities. Hull and Hofer make not mention of the profiteering off fetal tissue meaning abortion clinics have incentive to convince women to have unnecessary abortions. Hull and Hofer make no mention of how aborted fetuses are discarded in the trash like any other piece of garbage showing a complete and utter lack of respect for the prospect of life. Hull and Hofer are obviously biased liberals who decided to tell just one side of the story while convincing some they are neutral observers. Hull and Hofer compared the Woman’s right to choose to when men got the right to a limited eight-hour workday. I do not see how these are equivalent in any sense of the imagination. Women also have an eight-hour workday but fathers have no say in the outcome in the pregnancy of their child. An equivalent act would be to outlaw the military draft or have more women fight in combat. Abortion should be decided by the people of each state since it is not an enumerated power of the federal government in the Constitution. Just as the right for women to decide to have an abortion should not be a Fundamental Right, conversely the Court defining that life happens at conception would also be wrong. Even Justice Souter said abortion was not a Fundamental Right decided by Roe, but instead a power restriction on the states. I believe abortion can be a right (in some states) just as it is a right to brush your teeth. But it is up to the states to decide, not a nine-member Court. In her oral argument before the Court, Sarah Weddington who defended Roe, admitted “We are not here to advocate abortion. We do not ask this Court to rule that abortion is good, or desirable in any particular situation.” In other words, abortion is bad, but women should have the right to make decisions over their body even if they are bad. That is true most of the time, unfortunately abortion must consider the life of the baby. Abortion hardly sounds like a Fundamental Right. Fundamental Rights are something we can all agree upon that are good for humanity. In Weddington’s own words this is obviously not the case. Although the Court rejected assisted suicide as a Fundamental Right, by allowing abortion to be a Fundamental Right it opened the door to a slippery-slope of other issues. It would not surprise if euthanasia is eventually a Fundamental Right. Finally, abortion has always been a polarizing subject in American politics, especially at the state level. However, it only became a divisive issue on the national level because of Roe v. Wade. Roe v. Wade has created a political litmus test for conservative and liberal politicians and choices for federal courts. It has thrown gas on an already polarizing political landscape in this country. This is why the Court should not answer political questions. By doing so they have not only mitigated state sovereignty but individual sovereignty. Pro-abortion advocates will claim that Roe increased individual sovereignty for women. That may be true for some women, but certainly not a plurality of women, men, and the unborn. It is hardly a victory for equal protection when one group of people garner more rights at the expense of others. Since the Court settled the abortion issue millions of people who were not alive when the Court decided Roe no longer have a say on how its state decides such political issues. This is not democracy, it is tyranny. The only way abortion should become a federal issue is if the Constitution is amended. For the final argument against abortion it has been assumed that the pro-life argument is solely based on the fact that the fetus is a person and life happens at conception. But the Constitution has upheld hundreds of laws that do not pertain to people, but to property, corporations, and the environment. If destroying private property, wetlands, or wildlife is protected under our Constitution, then it is not a stretch to consider the Constitution may protect destroying a fetus.