Justice Thomas Stands Alone on Principle (Part II)

The Commerce Clause and Necessary and Proper Clause

Thomas believed the Court should adhere to the original meaning of the Interstate Commerce Clause: Trade amongst the States. However, during the FDR era the Commerce Clause was expanded to cover anything that is economic including intrastate commerce (Wickard v. Filburn, 1941). In United States v. Lopez (1995), Printz v. United States (1997), United State v. Morrison (2000), and Sabri v. United States (2004) the Court placed limits on the Commerce Clause: any law that was outside of being economic nature was not covered under the Commerce Clause. In Gonzalez v. Raich (2005) the Court held a federal law that prohibited limited medical marijuana growth for personal consumption was unconstitutional. Scalia sided with the majority citing Wickard and the Necessary and Proper Clause saying very limited marijuana growth was still economic in nature. Thomas, disagreed and did not hold back his disgust towards the majority.

The Dormant (Negative) Commerce Clause

Usually the Supreme Court has the final say regarding the legal aspect of laws. That is not true for Dormant Commerce Clause cases. Congress can veto the Court’s ruling with legislation if it wishes to do so. This is exactly what happened in United States v. SE Underwriters Association (1944) where the Court held insurance could be regulated by the Commerce Clause (this overruled Paul v. Virginia, 1869). In 1945, Congress passed the McCarran-Ferguson Act to negate the Courts decision. In Hillside Dairy v. Lyons (2003) Thomas stated that “the negative Commerce Clause has no basis in the text of the Constitution, makes little sense, and has proved virtually unworkable in application.” Thomas made similar claims in Pharmaceutical Research of America v. Walsh (2003)

Other First Amendment Issues: Campaign Finance

Thomas urges overruling of Buckley v. Valeo, (1976), and Austin v. Michigan Chamber of Commerce, (1990) in McConnell v. Federal Election Commission (2003) and again in McCutcheon v. Federal Election Commission (2014), to permit unlimited corporate and union political contributions. Thomas believes much of the campaign finance regulatory system violates the First Amendment. Thomas (with Scalia) also urged overruling Buckley in Nixon v. Shrink Missouri Government PAC, (2000). Of course Thomas got his wish when in Citizens United (2010) the Court held unlimited corporate and union political contributions where the law of the land.

Miscellaneous

In Johnson v. Texas (1993), Graham v. Collins (1993) and Trennard v. Dretke (2004) Thomas supports reconsideration of Penry v. Lynaugh, (1989) where the Court held that consideration of mental deficiencies were allowed when imposing criminal sentence. In Farmer v. Brennan (1994) and Ewing v. California (2003) Thomas wants to revisit Eight Amendment precedent including Solem v. Helm (1983), which applied a proportionality test to the Cruel and Unusual Punishments Clause and Estelle v. Gamble, (1976), which held that the Eighth Amendment regulates prison conditions not imposed as part of a sentence. In Cooper Industry v. Leatherman Tool Groups (2001) Thomas urged overruling BMW of North America, Inc. v. Gore (1996) which limits the size of punitive damage awards. In Grutter v. Bollinger (2003) the Court held that race can be used as a factor to determine admittance into Michigan Law School. Justice Thomas quoted a Fredrick Douglass’s speech: What the Negro Wants in his dissent saying race has no place in the educational system as Justice Harlan said “the constitution is color blind.” In Obergefell v. Hodges (2010) the Court held gay marriage was a fundamental right. In his dissent Thomas points out that Liberty is being free from government restriction or action and gay people’s freedom is not being encroached because being gay is not a crime. Furthermore, Thomas points out that Liberty does not include a “government entitlement or benefits” that marriage may provide. In American Trucker v. Whitman (2001) Thomas urges to revisit the Courts jurisprudence over the Separation of Powers. In Mitchell v. United States (2001) Thomas urges overruling Griffin v. California (1965) and Carter v. Kentucky (1981), which prohibited inferences based on a defendant’s silence in criminal cases.

Call for a State Amendment Convention

Are we doomed in the United States? Yes, if we must rely on Presidents, Congress, and the Courts. But there is a workaround. There are two ways to pass amendments to the Constitution. Article V of the Constitution provides, “The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states ….” The first twenty-seven amendments were passed using one method (two-thirds majority of Congress and three-fourths majority of the States). The second method has never been used. If two-thirds of the States petition for an Amendment convention, Congress can grant the action. Any proposed amendments at the convention receiving three-fourths of state approval become an amendment. Unfortunately, Congress is the gate-keeper to this convention and they are twisting the rules. A convention has never been called even though some estimate as many as 750 applications have been made in our history. Applications do not expire, nor do all applications have to agree on an amendment proposal (such as balanced budget). Hence, it highly probable over 34 States have submitted applications. So, why is Congress is holding up progress? They claim applications expire and applications proposals need to match the amendment States are petitioning for. Of course, Article V does not state this. Congressmen, both liberal or conservative, do not want people ruining the good thing they have going on Washington D.C. After all, if an amendment seeking congressional term-limits won the day, it would bring down the swamp. Hence, Congressmen are protecting their jobs. Washington bureaucrats have unlimited power, and they obviously do not want to cede any of it. It seems the only way a convention would happen is if the States went rogue and convened with or without Congress. What are some sensible amendments which can be proposed at a State amendment convention: a balanced budget, a line item veto, repeal of the Sixteenth Amendment, repeal of the Seventeenth Amendment, term-limits (Congress and even the Supreme Court), and State nullification (when two-thirds of States vote to void Congressional legislation, the law is withdrawn) are a few of the popular ones. State nullification is similar as anti-commandeering laws the Court upheld in New York v. United States and Printz v. United States. State nullification is also similar to proposed Congressional legislation to “opt out” of federal programs. Taxpayers within States that “opt out” of federal programs would receive tax refunds. In the wake of another school shooting, consider this example to remove lobbying money from the system (including from the NRA). After each school shooting the amount of anger and emotional outbursts by both sides continues to escalate. The fight over gun control and NRA lobbying can be controlled by both imposing both term-limits on Congress and repealing the Seventeenth Amendment. If Congress has term-limits this mitigates lobbying money when congressional members become lame ducks and no longer need campaign contributions for reelection. Repealing the Seventeenth Amendment would put the responsibility of selecting Senators back in the hands of State legislations instead of by popular vote. Hence, campaign contributions are no longer needed to elect Senators. Of course, this does not mean State legislators cannot be lobbied by the NRA, but a quid pro quo situation would be considered bribery. These are issues that both the Right and Left could come together on.

Justice Thomas Stands Alone on Principle (Part I)

I have heard all the claims (mostly by the Left) that Justice Thomas is “stupid” because he very rarely asks questions during oral arguments. After independently studying the law, I have determined that Justice Thomas is probably the smartest Justice on the Court. A “stupid” person would hide behind precedent and join concurring and dissenting decisions. Thomas does not do this. He often writes separate concurring and dissenting opinions because he does not believe in the principles used by the majority and minority voices. That is what is great about the Supreme Court: Someone may concur with the result, but they can voice a different methodology or principles of getting to that result. Thomas does not hide, he offers his conflicting views in the open for all to see. He does this more than any other justice, by far. He may not ask many questions, but you know where he stands. Let’s examine the many decisions where Thomas has wrote separate opinions and stood alone. And let’s not forget many of the principles that Thomas stands for would be good for both liberal and conservative sects of the Court such as bringing back the Privilege and Immunities Clause in the Fourteenth Amendment.

The Privilege and Immunities Clause

In McDonald v. Chicago (2010) Thomas argued that the Court’s methodology used to elevate the Fundamental Right to “keep and bear arms” for self-defense was incorrect. The majority used the conventional practice of applying the Fourteenth Amendment’s Due Process Clause. However, Thomas suggests the Court stop this methodology once and for all and reinstate the Privileges and Immunities clause of the Fourteenth Amendment. That was the intent of the framers when they drafted the Privilege and Immunities clause: to elevate fundamental rights not found in the Constitution. Remember, the Privilege and Immunities clause was essentially written out of the Fourteenth Amendment in the Slaughter House Cases (1873). Thomas not only proposed to overrule the Slaughter House cases, but also United States v. Cruikshank (1876) which held that the Second Amendment and Fourteenth Amendment only applied to the states, and not individuals. This was second time that Thomas brought up revisiting the privileges and immunities clause. He originally brought it up in Troxel v. Granville (2000). It is interesting to note that Scalia and Thomas were on opposite sides of the Troxel decision. Scalia believes it is not a judges position to elevate fundamental rights, whereas Thomas thinks it is okay to elevate fundamental rights if it is done properly: through the privileges and immunities clause and not the due process clause.

The Establishment Clause

In Zelman v. Simmons-Harris (2002), Elk Grove Unified School District v. Newdow (2004), and Greece v. Galloway (2014), Thomas holds that the Establishment Clause does not apply to the states via the Fourteenth Amendment as most Bill of Rights clauses and Amendments do. The Establishment Clause of the First Amendment says “Congress shall make no law respecting an establishment of religion.” Thomas argues since the clause refers specifically to “Congress” thus it is “best understood as a federalism provision.”

Commercial Speech

Thomas firmly believes that Commercial Speech should be treated exactly the same as Political Speech. Political Speech is evaluated using “strict scrutiny” meaning that the burden is on the government to prove there is a compelling reason for the government to abridge First Amendments rights of individuals, groups, organizations, or corporations. Thomas disagrees with the Commercial Speech standards set forth in Central Hudson Gas and Electric v. Public Service Commission (1980). Commercial speech is mostly an issue between corporate advertisements and government regulations over such advertisements. So long as the advertisements are truthful Thomas believes there should be no difference in the judicial evaluation process for political and commercial speech. Thomas wrote separate opinions in Thompson v. Western States Medical Center (2002), Lorillard Tobacco v. Reilly (2001), United States v. United Foods (2001), Greater New Orleans Broadcasting v. United States (1999), Glickman v. Wileman Brothers (1997), and 44 Liquormart v. Rhode Island (1996) to stress this point.

Russia's Plan is Working to Perfection

With the indictment of 13 Russian trolls, it is now obvious that the goal of the Russia meddling during the 2016 election or any election is to try to create as much chaos as possible. They do not care so much as to who wins, what they want to accomplish is hysteria, chaos, and unrest. And their plan is working and Americans and the media are playing right into their narrative. This is what we have learned thus far:

1. The Democratic National Committee (DNC), Hillary Clinton, and Christopher Steele were played. The bought phony information that was made up by Steele contacts within Russia to give the appearance of collusion by the Trump campaign or worse yet, criminal activity to change the outcome of the election. Clinton, the DNC, and Steele most likely agreed with the information in the Trump dossier without corroborating it and then leaked it to law enforcement (FBI and DOJ) as well as the media. Since Steele had a good reputation the FBI, DOJ, and media also thought the information was factual. Most of the information was corroborated by a Yahoo article, but Steele was the source for that article. So, the Trump dossier was never corroborated. Russia was merely trying to create chaos, hysteria, and unrest and they succeeded. Americans and the media are more polarized than ever before. The DOJ and FBI broke the law to obtain FISA warrants to monitor Trump campaign volunteer, Carter Page, to gain access to the campaign. The Obama administration also unmasked Trump campaign workers without any good reason. Over half of the country is in a panic, and not because of Russian meddling, but because Trump in President.

2. Why have there not been any indictments for the breach of DNC emails released by Assange during the election? The DNC claims Russians did this, yet there have been no indictments. The best the Muller council can do is indict 13 low level Russians who spend maybe a million dollars to play both sides. This low-level activity is not going to affect too many votes.

3. Russia bought ads on Facebook and social media for the same goal: create chaos in the American election system. Once again, the amount spend seems to be low but like most Americans, social media was played.

4. Russia meddling plays both sides (Republicans and Democrats) to generate unrest.

5. There is no link to the Manafort and Flynn indictments to election meddling.

6. There is no Trump collusion or obstruction at this time, but there appears to be plenty of Democrat, DNC, FBI, and DOJ collusion and obstruction in the election process.

The bottom line is that Russia is laughing about how gullible and how easy it was to manipulate Clinton, the DNC, the media, the DOJ, and the FBI. I do not believe they thought in their wildest dreams that folks would dislike Trump so much that they would do anything to end his presidency including breaking the law and publishing dozens of fake news stories. Russia may not have changed the outcome of an election, but they were very successful in creating unrest, chaos, and hysteria. What is even more troubling is that tens of millions of Americans are too dumb to realize when media propaganda and false narratives are brainwashing them. This polarizing of the electorate will work to the Russians advantage during the next election since it will be easier to manipulate how Americans vote. So far, the Muller investigation has not turned over too much Russian interference, but it obvious it has created a lot of hysteria and chaos. One can come to this conclusion just by watching 5 minutes of CNN and MSBC or spending 5 minutes on Social Media. The country has gone simply insane.

Proof of Politics on the Court: The Second Amendment (Part II)

In McDonald, the Court held a Chicago statute banning handguns from most private citizens was unconstitutional. The main difference between McDonald and Heller was that Heller was applied to a federal jurisdiction (DC) and McDonald was applied to the States. In this case, Justice Alito applied the Second Amendment to the states via the Fourteenth Amendment using the Due Process Clause. This is similar to how almost all Bill of Rights clauses and provisions were applied to the states back in 1960s. Alito gave a historical analysis of “gun rights” around the time of the ratification of the Fourteenth Amendment (Freedman’s Act of 1866, and the Civil Rights Act of 1866) to show that the Right to “keep and bear arms” for self-defense was fundamental because it was “deep-rooted in American history and tradition” (Glucksberg, 1997).

Many of the dissent’s arguments in these two cases are easily refuted. First, the dissent suggests gun rights have two faces: both legal and criminal uses (“liberty is on both sides of the equation”). However, the First Amendment has the same two faces (obscenity, inciting words, fighting words, and defamation are crimes outside of First Amendment protections). In fact, many ugly and hateful free speech words and actions are still legal (burning crosses, burning flags, military funeral protests, and Nazi parades so long as protests are peaceful and actions do not incite violence). Many Supreme Court cases have liberty at issue on both sides of the lawsuit. This is not uncommon for example, the Slaughter House Cases in 1873. In that case, the Court faced a challenge to a discriminatory statute but the Court held it had a compelling government interest to protect the safety and well-being of the citizens in New Orleans. Secondly, the dissent argues that slavery and discrimination against women and transgender persons are “deep-rooted” in American history. However, the Fourteenth Amendment also has an anti-discrimination clause: the equal protection clause so discriminatory laws are found unconstitutional. Thirdly, the dissent tries to change the subject from “liberty” in the Fourteenth Amendment to protecting “liberty interests” which requires a lower level of judicial scrutiny. Fourth, the dissent points to stricter gun laws in other modern countries around the globe. That may be true, but we have higher crime rates and guns are needed to fight crime (kind of a “chicken and egg” scenario). Besides, no fundamental right is free from regulation and each of the 50 states can still regulate guns so long as the law has a compelling government interest to do so. The burden of proof would be on the government and they would face a strict scrutiny of judgment, but regulation is possible and that is why all 50 states have vastly different gun laws (see experimentation below). Fifth, the dissent argues the Second Amendment is “a federalism provision directed at preserving the autonomy of the sovereign states.” This is similar to saying the Second Amendment is similar to the Tenth Amendment. This issue was discussed above, that is why the difference between the conservative and liberal definition of “states” and “the people” in the Amendment are critical. Sixth, the dissent argues that states and cities should be able to “experiment” with laws that suit them since, for example, crime in urban areas is higher than rural areas. Hence, there is no need for one uniform gun law across the nation. This is where the liberals are really hypocritical. By elevating abortion as a fundamental right, the Court struck down hundreds of state laws that are highly differentiated mostly due to the vast difference between political and religious philosophies. In fact, the dissent quotes the majority opinion in United States v. Lopez (1995) claiming experimentation is needed “where the best solution is far from clear”. But Justices Stevens and Breyer both dissented in that case and did not agree that experimentation should be allowed (in that case). As pointed out above, all 50 states have different gun laws (experimentation is still possible, but it will face strict scrutiny).

I would go a step further and say people have the right to protect themselves and their families in the “privacy” of their homes. Remember, liberals used the fundamental right to privacy (Griswold v. Connecticut, 1965) to elevate other rights such as sodomy (Lawrence v. Texas, 2003), gay marriage (Obergefell v. Hodges, 2015), and abortion (Roe v. Wade, 1973). Conservatives are merely using judicial precedent put forth by liberals to protect the use of guns for self-defense. What comes around goes around. I do not think anyone would deny that self-defense is a fundamental right which is no different than Darwin’s “survival of the fittest” for all species. Furthermore, I do not think anyone would deny any means possible for any living species to defend themselves.

The GOP is Crapping on the Constitution

The GOP and Democrats agreed on a two-year spending resolution. In that agreement, that GOP would get a much needed extra 135 billion in spending for the military. On the flip side, the Democrats received about 120 billion in extra discretionary spending across the board to be shared by all other department and agencies. This is a terrible deal because it adds 250 billion dollars of spending, per year, to the budget without reducing spending anywhere. We know Democrats are big spenders, but so too are Republicans and this is proof. Sure, they want to rebuild our military, but they cannot hold the country hostage with tons of debt in doing so. It is not worth it if the result is a larger and bigger federal government which will ultimately take away from individual and state sovereignty. This compromise is not worth it. The United States is over 20 trillion dollars in debt and any agreement to increase that debt is a bad deal for the future health of our economic system. But that is just it, politicians are so used to kicking the can down the road, it is just a matter of time before our debt and unfunded liabilities ruin this country.

Even those Republicans who did not vote in favor of the spending bill have misguided views. Several of these folks have been on TV talking about how Republicans could eliminate Senate procedures requiring 60-votes for cloture on spending bills. Once Republicans eliminate the 60-vote threshold then they can push their will on Democrats. There are several issues with this type of thinking. First, it is short sighted. When Democrats have majorities in Congress, they will return the favor by cutting military spending while increasing discretionary spending. What comes around goes around and Republicans should not forget this. Secondly, and most importantly, Republicans wanting to do away with the 60-vote threshold are forgetting about the history of America. Our Constitution does not implement a simple democracy, the Constitution outlines the government of a Republic. Our founders abhorred democracy and that can best be outlined by James Madison in his Federalist Paper 10 essay. To protect Americans from majority factions wanting to infringe on the rights of minority groups the Constitution put in place many checks and balances to ensure that majority groups will not get their way and impose their will on minority groups.

How is America a Republic but not a democracy? The Constitution supports Federalism to share government functions between the States and federal government. All States have two senators regardless of population. The Electoral College is not population based. Both the Executive and the Supreme Court can void legislation passed by Congress who support the people. And many laws or treaties require more than a simple majority to pass. Impeachment, amendments, and treaties, for instance, require super majorities to pass. This structure of the Constitution was put in place for reason: to protect citizens from government encroachment. The same can be said of a 60-vote majority in the Senate for spending bills. This Republican form of government helps protect citizens from government encroachment (like hijacking the future of our grandkids). For this reason, Republicans should not destroy this Constitutional structure. If our Founders wanted a simple democracy then they would have created that.

In one case the Supreme Court held that Nevada could allow for a simple majority to pass a budget instead of a supermajority required in the State’s Constitution. This is wrong. It infringes on protections built into the Nevada Constitution to protect its citizens. People have less freedom not more. There is nothing wrong with gridlock. This is how things are supposed to work in politics so one side does not push its agenda on another. A Republican form of government should be respected instead of being taken down brick by brick by the Court and impatient politicians. The Sixteenth Amendment (income tax) and Seventeenth Amendment (elect Senators through popular vote) are excellent examples of amendments that work to support democracy at the expense of Republican principles. We need to stop crapping on the Constitution.

Finally, Proof of Russian Collusion

It has been over a year, but investigations have finally shown proof of Russian collusion to influence the 2016 presidential election. The sad reality is that much of the media is refusing to cover the story because the outcome is not what they expected. No, the Trump campaign did not collude with the Russians. The guilty party was the Democratic National Committee, Hillary Clinton, and the Obama administration. What transpired is exponentially worse than Watergate because it involves corruption at the highest levels of the State Department, law enforcement (FBI), and the Department of Justice. All three of these departments colluded with a former British Agent, Richard Steele, who in turn bought information from Russia to construct a phony dossier of President Trump. The Trump dossier was then used to obtain dozens of Freedom of Information Surveillance Act (FISA) warrants to spy of a Trump campaign volunteer, Carter Page. The spying of Page continued from the Trump campaign, the Trump transition, and the Trump presidency. Page has never been charged with a crime and while there has been no collusion or crimes committed by the Trump campaign with Russia, there has been plenty of collusion with Democrats. There was a “never Trump” movement within the highest circles of government and they did whatever they could to affect or change the outcome of an election. This is a Constitutional crisis with huge implications. Government is to protect the rights of citizens and our Republican elections. When government interferes with the outcome of an election by violating the rights of citizens and candidates this is essentially a coup d’état. The checks and balances of our government is to prevent these types of things from happening. That is why congressional oversight of our law enforcement and government agencies is so important. While Democrats and agencies try to protect themselves from disclosure of information, it is apparent they are guilty of not only obstructing justice, but of treasonous crimes against the State. When agencies fight transparency and they criticize those investigating them as being un-American, then the investigators are on the right track. People need to go to prison. This is bad. What is even more disturbing: had Hillary Clinton won the election we would have never learned the lengths at which people violated the law to circumvent an election result. That is scary. That is why consequences need to be long and lasting. The thing I cannot figure out is how incompetent Democrats really are. Why push for investigations into crimes that only you are guilty of committing? Why push for Russian collusion crimes when only you are guilty of committing? Sure, Democrats tried to frame it to look like it was Republicans that were guilty of the crime of Colluding with Russians to change the outcome of an election, but when the incriminating evidence planted by the Democrats was phony, the scheme was going to be uncovered. Is this arrogance? Maybe. The Democrats essentially led investigators to their doorstep. But Trump hysteria has caused many people to act in such irrational ways. They have become desperate to change the outcome of an election they would do anything even it meant getting sloppy (texting incriminating information, falsifying documents and reports). It is as the old saying goes “who ever smelt it, dealt it”. The stench of a phony dossier and fake news only shows those dishing out the lies are the ones guilty of crime. It is quite common for persons guilty of crimes to blame and frame others. This is no different. Again, I am starting to like what I call “Trump Chaos”. I am not a fan of chaos, but “Trump Chaos” is controlled in the sense the markets and economy are doing well. But the chaos surrounding Trump is showing the true colors of the media and Democrats. When those investigating the “never Trump” conspiracy are labelled as “Russian” spies and media outlets continually transmit false stories then we know all we need to know about Democrats and their objectives. That is why no one should be surprise that Democrats are behind the Russian Collusion to fix the 2016 election.