Tuesday, January 22, 2019
In the United States v. Butler the Court held that the Agriculture Adjustment Act was unconstitutional. But dictum in that opinion opened the door for the Court to uphold the Social Security Act in Helvering v. Davis just a few short years later using the General Welfare Clause. By all accounts, the General Welfare Clause meaning at the Constitutional Convention was that the Federal Government can protect the General Welfare by only acting upon enumerated provisions within the Constitution. In other words, if the General Welfare Clause was a provision that yielded the Federal Government with unlimited power, then why enumerate any powers since they are simply truisms? Congress has no grant of power in the Constitution to start any social welfare programs such as Social Security. By 1987, when the Court decided Dole v. South Dakota, the line of cases Butler, Helvering, and Dole gave the federal government unlimited coercive spending power. Today, we are starting to see how this abuse of government power can be used against liberal agendas such as sanctuary states and cities. Trump’s actions will ultimately go before the Supreme Court but Butler – Helvering – Dole should provide him ammunition to defend his policies to withold funding to sanctuary cities. Liberals revere Helvering, but maybe they will start to see how expanding government can work both for and against their benefit. Roe v. Wade (1973) made abortion legal throughout the United States. In his Roe opinion, Justice Brennan said the Court had no business defining when life begins and then went on to do exactly that in his opinion: Brennan defined when a fetus is viable and when the fetus is not viable. Since Roe liberals, governments, and the Court have been busy providing preferential treatment to certain groups of people including the LBGT community (Romer v. Evans), racial minorities (Grutter v. Bollinger), and women (United States v. Virginia) in the name of equal protection. Liberals, governments, and courts have even provided citizenship rights to enemy combatants, nature, and animals where they cannot be denied due process of law. Conservative groups have been able to garner more rights for corporations (ever since Santa Clara County v. Southern Pacific Railroad in 1886). Now, consider the Supreme Court decision Bennis v. Michigan. In that case, the Court held that authorities can confiscate private property without compensation. In Bennis, authorities confiscated a car after apprehending suspects conducting an illegal sexual act (prostitution) in the car. However, the perpetrators apprehended in the case did not own the car, they illegally broke into the car to perform their sexual activity. Tina Bennis, who took no part in the crime, merely wanted to retain her property, but in the eyes of the Court the car was “guilty property”. Taking property from innocent victims is not only wrong, it is like kicking a person when they are down. The Bennis opinion provided a scary modern precedent to what is called civil forfeiture or “guilty property” cases. Could authorities confiscate a car, boat, or plane if a single passenger had a single illegal marijuana “joint”? Under Bennis, the answer is yes. In United States v. One 1970 Pontiac GTO: The United States sued a car. In fact, there have been several cases where a car was a defendant or plaintiff: One 1958 Plymouth Sudan v. Pennsylvania and United States v. One 1978 Chevrolet Impala. There are other cases where the property was a boat such as United States v. One 1976 Chris-Craft 27 Foot Fiber Glass Boat. That is right, we may sue corporations and persons, but we can also sue property and even nature. All of this precedent would allow an opening for conservatives to file for fetus rights instead of trying to overturn Roe. It does not matter if a fetus is considered a citizen or even a viable human being, liberal courts have shown that citizenship or personhood is not necessary to garner Constitutional protection (equal protection or due process). Why can’t a “fetus” obtain preferential treatment and rights. After all, the fetus is unable to protect its own rights. Why can’t a fetus have rights equivalent to non-citizens, nature, property, or corporations? Non-citizens, nature, property, and corporations may not be allowed to vote, but they all can receive due process protections in our courts. So, it begs for us to ask the question: why can’t a fetus receive due process protections in our courts regardless of personhood viability? Gay marriage and marriage have been elevated by the Court as a fundamental right. However, gay marriage was elevated using equal protection in an odd manner: not because everyone should have marriage rights but because marriage was a form of entitlement. Since the government ties tax breaks and estate tax rates with marital status, gay members of our society wanted the same protections. In other words, gays were not wanting marriage for reasons regarding love, but for financial reasons. Hence, the institution of marriage is not what is discriminating, it is those government entitlements that are discriminating (treating single persons differently from married persons). Remember, churches often refuse to marry people for a number of reasons including compatibility issues, not just their faith and believes. Hence, it is difficult to say churches are discriminating since anyone can be denied the right to marry is particular churches. If gay marriage was upheld, it should have been done using our right to freedom of contract. No one can deny that marriage is a contract between a two people and possibly their faith organization. However, liberals do not like to use freedom of contract or economic freedom because it would mean restoring faith in older decisions such as Lochner v. New York which both conservatives and liberals abhor. Lochner protected an individual’s right to seek a lawful profession without government interference. Liberals dislike this because restoring Lochner would mean overturning the entire progressive New Deal (union protection, wage and hour regulations, social security, and so on). And both conservatives and liberals did not like the fact the Lochner Court elevated a right which was not enumerated in the Constitution. After all, if freedom of contract is protected for marriage, then freedom of contract should be protected between employer and employee. But, it is ironic that the Lefty Justices decided to elevate marriage rights just how Righty Justices elevated economic rights. So, there is really no difference in the Court’s jurisprudence reasoning in Lochner and Obergefell (gay marriage decision). In essence, the Court is actually restoring a part of Lochner.
Thursday, January 17, 2019
In Berman v. Parker (1954) the Court held that cities can condemn property in poor neighborhoods to refurbish “blighted” communities. In essence, Berman allows for the lawful taking of property from the poor which is, in turn, given to wealthy land developers. The poor also loses because their “just compensation” is extremely low for depressed lands and therefore the compensation is inadequate for the poor to find a new home in a decent community. In essence, Berman is a significant cause for homelessness. In Kelo v. New London (2005) the Court held that taking private property for private purposes is permissible if the takings would result in a public benefit such as more jobs and more tax revenue. Hence, the Court changed the meaning of the Takings Clause from “public use” to “public benefit”. Kelo is dangerous precedent because no one is safe from these types of takings: local governments can simply condemn your home and give the property to a land development company that will benefit the public with more jobs and tax revenue. Governments even use regulatory takings to take private property without just compensation. In Penn Central Transportation v. New York (1978) the Court held that a regulation making Grand Central Station a Historic Landmark that denied Penn Central from building on property they own was not only constitutional, but New York did not have to compensate Penn Central. In Tahoe-Sierra Council v. Tahoe Reginal Planning Agency (2002) the Court held that temporary takings through regulation was constitutional. In Tahoe-Sierra the Court held that regulations preventing property owners from building on their land for 20 years was not only acceptable, it can be done without just compensation. So, what is the solution? Maybe it is time for local governments to condemn liberal neighborhoods so they can build a Walmart, Target, and other national chain stores to generate jobs and more tax revenue? Or maybe the EPA can generate regulations placing a moratorium on home owners from obtaining building permits for 20 years in cities like Chicago, New York, San Francisco, Los Angeles, Boston, and other liberal cities. The EPA can make up some phony excuse claiming they are merely trying to prevent excessive emissions in densely populated areas. If this were to happen, liberals would be up in arms, and they may try to overturn Kelo, Berman, Tahoe-Sierra, and Penn Central and restore the Takings Clause in the Fifth Amendment. After all, targeting liberals is no different than when liberals targeted conservatives in the Obama administration (IRS and Journalists). The bottom line, if privacy is protected within the home, then shouldn’t the home and private property be protected from at least takings for private reasons as prescribed in our Constitution? In the line of cases University of California v. Bakke (1978) and Grutter v. Bollinger (2003) the Court held that race may be used as a “plus factor” when considering diversity for admission into schools or for jobs. The Court held that using race as a quota system was unconstitutional, but using race as a determinate for admission is not much different than a quota system. They are both discriminatory. In Plessy v. Fergusson (1896) the Court held the separate but equal doctrine was constitutional. Hence, the era of racial segregation was born. In his Plessy dissent, Justice John Marshall Harlan said the Constitution was “color-blind”. But the Bakke and Bollinger cases illustrate that race “matters” as Justice Sotomayor continually reminds us in her misguided opinions. If race matters, then maybe Tanny’s ruling in Dred Scott was correct? Essentially, Bakke and Bollinger are an attempt to overcome past injustices against African-Americans. But when do we finally put an end to racial discrimination because Bakke and Bollinger are no better decisions than Dred Scott? All these opinions discriminate. Consider how the Michigan Law School in Bollinger bypassed more qualified Hispanics and Native Americans in favor of African-Americans who had lower grades and test scores. Therefore, Bollinger was discriminatory against all races at the expense of African-Americans (In other words, the Michigan Law School was not trying help minorities or women, but only blacks). Regardless, discrimination is discrimination and the Constitution does not permit it. What if conservatives pushed for “equal protection” and diversity for admissions into schools and jobs for individuals with conservative political affiliations. We know that liberals dominate positions within the public-school system: teachers and administrators. I doubt liberals will like conservatives using University of California v. Bakke and Grutter v. Bollinger precedent to uphold equal protection so more conservatives can land public teaching and administration jobs. This would counter the liberal brainwashing power in the educational process on our youth. After all, there is no difference in discriminating using race or gender and discriminating using political affiliation. The Constitution is not only color-blind, but it also does not know any political ideology or socio-economic status. But liberals cannot merely pick and choose which types of discrimination are acceptable and which forms are not. The 1961 case Anastaplo is further proof that the Court can discriminate based on political ideology. The details of this case are discussed later in this blog.
Saturday, January 12, 2019
When Alexandria Ocasio-Cortez said “Facts don’t matter when you are morally right” she is practicing both social and moral justice to tax the wealthy at a 70% federal rate. Both the Right and Left are guilty of using moral and social justice throughout American history. For instance, conservatives would use moral justice to ban alcohol, gay sex, marijuana, sex toys, pornography, gay marriage, and masturbation to name a few issues. Liberals would use moral justice to defend climate change, higher taxes, takings without compensation, illegal aliens (building the wall is now a moral issue), entitlements, diversity, and affirmative action to name a few issues. Anything that violates the rights of any American, regardless of morality, is against any true meaning of the Constitution to protect everyone equally. Individuals can violate their own rights and morality code so long as their actions affect no one else. For instance, using alcohol, sex toys, or masturbation hurts no one and violate no one rights when done in private and with consent. Morality and social justice are just excuses to persecute the minority in favor of what the majority wants. What does the majority want? More money and entitlements at the expense of their neighbors. But nothing in the Natural Law (morality) or the Constitution permit taking money from a private citizen and giving it to another private citizen. The Fifth Amendment Takings clause permits taking property from private citizens for public use, not private use. Is abortion morally right, regardless of the facts? According to Natural Law it is the job of citizens to protect the rights of the unborn. This concept plays into the hands of liberals who want to “save” the planet from climate change or conservatives who want to pay down our debt. These are both moral concepts but they conflict: We cannot save the planet by bankrupting future generations. Just because something is morally right, it does not mean government should tax people beyond reproach. This would make taxing for climate change morally wrong. Besides, the government always wants to spend money to solve a problem and very rarely do they want to try innovative means to solve a problem without putting everyone in debt. Socialists like Ocasio-Cortez and Bernie Sanders are the worst. They want to take other people’s money but they will go all out to protect their own wealth. And when it comes to money, there is never enough. As fast as Democrats would implement a 70% tax on the wealthy, they would seek to increase that rate. Morality is about individuals making the right choice. It is not about the government making what it perceives as the right choice, especially at the expense of others. Morality is not about being concerned what our neighbors are doing, it is being concerned about what we are doing. If people follow morality codes then they will help neighbors in need without government intrusion. Government interference turns welfare into a Right and Left argument, creates expensive lobbying, creates class warfare, and uses the power, interest, and partiality principles which will violate the rights of many. Think about this, if welfare is a human right then government interference is a violation of that right. Take the government run Veterans Affairs (VA). How many veteran’s rights were violated by government intrusion into their healthcare? If government is making welfare more expensive, cannot properly protect the identity of citizens, generates a monopoly preventing citizens from opening businesses in medical fields, or generates mandates, rules, and regulations that help some but hurt others then they are violating the rights of citizens. A one-size fits all government run welfare program will violate the rights of some while benefiting others. This is wrong. Besides, what people like Ocasio-Cortez fail to realize that there is a big difference between taxing income and wealth. And she certainly does not understand basic economics and the Laffer effect on the economy. Remember, Venezuela, Iran, North Korea, and Russia do not care about facts either and look at the status of their socialized countries. It is not the job of Congress to implement the will of the constituents that support them. No, it is the job of Congress to protect the rights of ALL citizens. It is time to stop moral and social justice and it is time to protect the rights of all citizens by practicing the Natural Law principle of subsidiarity: To allow local governments and communities help their neighbors. There is nothing moral about violating the rights of some at the expense of others. Morality is part of Natural Law. The Right and Left only defend Natural Law when it is convenient. Natural Law is the science of reason. This means humans must make free-will decisions based on reason without emotion and feelings. And when reasonable free-will choices conflict, it is then up to humans to choose the more moral choice. Right now, most government decisions are not rational, hence there is no moral choice. For instance, diversity, affirmative action, and protecting preferred classes of citizens is no different than the jurisprudence that led to many of the worst decisions in SCOTUS history: Dred Scott (Slavery), Plesy (Segregation), Buck (Sterilization), and Korematsu (Internment). These are not rational choices and therefore they cannot be moral. Ocasio-Cortez is wrong that morality does not include facts. I may have an opinion that tattoos and sex toys are immoral. But opinions are not facts backed up by reason. First, tattoos and sex toys do not harm others and therefore violate no one’s rights (if sex toys are used in private and with consent). Second, think of how shutting down sex and tattoo stores will harm the owners of those shops by violating their right to work. Hence, a reasonable decision for me is to say I do not like tattoos and sex toys, but they are not necessarily immoral. Strict Natural Law theorists may dispute this, but in my reasonable opinion there must be harm for something to be classified as immoral. Hence, to come to a moral decision, facts are necessary without emotional rhetoric. So, what would be a rational decision for the Wall? I tend to favor border security over no security to protect American citizens from having their rights violated. But nothing is ever black and white anymore and people can certainly empathize with those who struggle in other countries. But thinking that way is using emotion and feelings. The law and morality are not about emotion and feelings. And let’s not forget any illegal alien who dilutes the vote of a citizen, takes a job that would otherwise go to a citizen, fails to pay taxes, takes entitlements, or commits a crime is violating the rights of some if not all American citizens. Maybe we can build a wall and have boarder security for States that may want it like Arizona and Texas. States like California and New Mexico can have open boarders but they will be held liable for any instance of a violation against the rights of an American Citizen for any future boarder crossings. Maybe States can decide if they want illegal aliens residing or travelling through their borders. After all, there must be restitution for a violation of rights. This is probably not a good compromise, but it is the only one I can think of using Natural Law and morality. Sure, it seems morally correct and decent to allow every starving and disenfranchised person around the globe to enter our country. But is this reasonable? No, because it is cost prohibitive and at the same time, we have millions of citizens in this country suffering. Since it is not reasonable, it is not moral.
Monday, January 7, 2019
Since the progressive New Deal Court expanded the powers of government to be infinite, maybe it is time to use much of this precedent to afflict ill will on liberals. Do not get me wrong, I normally do not wish ill will on anyone. But until the Left feels the impact of their “living Constitutional” rulings, nothing will be done to correct these egregious injustices. Actually, some Constitutional corrections have already started to happen. For instance, in Wickard v. Filburn (1941), the progressive Court expanded the meaning of the commerce clause to cover just about anything. However, recent decisions in Lopez v. United States, Morrison v. United States, and Bond v. United States the Court restricted the commerce clause to cover only things that are economic in nature. The modern Court also used Wickard v. Filburn to attack a topic close to liberal’s hearts: medical marijuana. In Raich v. Gonzales (2005) the Court held that persons in California could not grow small amounts medical marijuana to overcome bodily pain caused by various medical disorders (even when prescribed by a doctor). Raich, was actually an outcome where the conservative sect of the Court incorrectly applied moral standards over personal rights. After all, shouldn’t the “pursuit of happiness” mean for persons to find ways to avoid pain? Of course, Filburn and Raich could be further used to prohibit the growth of small amounts of marijuana for personal use (states that allow recreational marijuana also allow persons to grown small amounts of the drug for personal consumption). Liberals have assailed rulings such as Wickard, but cry foul over rulings such as Raich. They cannot have both ways. Maybe, if the government starts to pressure liberals using the same precedent they revere, then maybe they will start to see the light. There are other examples where terrible progressive rulings have been overruled. For instance, the Court has reversed liberal free speech restrictions on campaign contributions using liberal interpretations of free speech to include expressions such as to burn the American Flag. Thus, McConnell v. FEC has essentially been overruled by Citizens United. After all, money is the most common form of property used by persons to express themselves. Thus, it makes sense to lift monetary restrictions and caps placed on campaign contributions so people can express their political views without any First Amendment restrictions. Also, if the progressive FDR Court can deprive American citizens due process of the law and lock them up in internment camps for national security reasons (Korematsu v. United States), then why should Trump be denied the right to deny immigrants access to the United States for national security reasons? Laws and regulations which attack businesses, protect unions, and deny citizens the right to pursue a lawful profession without government interference have been liberal favorites. But, competitive federalism allows citizens and corporations to “vote with their feet” and move to states with right to work laws. This forces liberal states to change or face a mass exodus of tax revenue which is exactly what is happening in Midwest and Northeast for several decades. Companies and individuals are moving to the South for better climates and better tax situations. The Court denied gun rights in United States v. Miller nearly 80 years ago. Circuit Courts used Justice McReynolds convoluted decision in Miller to declare gun rights were not individual, but collective. But the modern Conservative court used liberal tactics to elevate non-constitutional rights such as the right to self-defense. The right of self-defense provided conservatives the opening they needed to declare gun rights are individual and not collective rights in Heller v. District of Columbia and McDonald v. Chicago. Since the 1960s, liberal Courts have been correctly applying the Bill of Rights to the states to protect individual rights, except for of course, the Second Amendment. It was just a matter of time before these shenanigans caught up to these openly bias liberal justices. After all, judges cannot pick and choose which clauses and amendments they like and which ones they do not in the Constitution. Judges must take the good with the bad. For instance, I do not like the Takings Clause, but unfortunately eminent domain is a lawful and permanent part of our society.
Wednesday, January 2, 2019
Substantive due process principles took a serious hit in a few landmark cases during the 1870s. In the Slaughter House cases of 1873 the Court held a New Orleans law to monopolize the butcher business and deny the natural right to work a lawful job for many butchers was constitutional. What was worse, the Court decision basically wrote the privileges and immunities clause out of the Fourteenth Amendment. Because of the Slaughter House cases, later Courts would rely on the due process clause of the Fourteenth Amendment to elevate substantive due process rights. Also, in Bradwell v. Illinois (1873) the Court denied a woman the right to practice law. Even in United States v. Cruikshank (1877) the Court held that the lawful constitutional rights to bear arms and to peacefully assemble only applied to the federal government and states could deny these fundamental rights. The most controversial substantive due process decision (other than Roe and Dred Scott) was Lochner v. New York (1905, sometimes referred to as the Bakeshop Case). In Lochner the Court upheld most of a New York law to improve bakery work conditions and sanitation issues. The one provision of the law the Court struck down was a provision to limit employee work hours to 10 hours per day and 60 hours per week. The Court held via substantive due process that a work contract between employer and employee was a natural right and government could not interfere to restrict that liberty. Lochner, today, is viewed as a terrible decision by both the right and left. I am in the minority to see it as a good decision. Some laws may have good intentions and may benefit some workers, but they could also be devastating to workers needing money to support their families. Bakery work hour limits could also be devastating to mom and pop bakery shops who are having a tough time competing against larger bakery corporations because they cannot afford to employ more workers. Besides, the New York law was arbitrary in the sense it only placed restriction on bakers and no other types of professions. By the time the Court decided Nebbia v. New York (1934) and West Coast Hotel v. Parrish (1937) during the New Deal, the Court had overturned Lochner era “right to contract” doctrine. The New Deal Court upheld any and every state and federal legislative effort to interfere with individual liberty over economic issues. Individuals no longer had an option to work the hours they wanted or decide if a union was in their best interest. Individuals could no longer make critical decisions over their own welfare. In fact, in Williamson v. Lee Optical (1955) the Court held that an Oklahoma law preventing a person from working a lawful occupation (that Lens Crafters does today) was Constitutional. The Court found the law was “rational” even if it did not entirely make sense. The progressive era did much damage to the Constitution and individual rights. Justices such as Oliver Wendell Holmes and Louis Brandies trampled on people’s right: From Mueller v. Oregon (1905, denying women the right to work), Bailey v. Alabama (1916, enslaving Blacks in prison for violating work contracts), Buck v. Bell (1927, compulsory sterilization), Schenck v. United States (1917, placing people in prison for publishing anti-draft pamphlets) to Kormatsu v. United States (1943, interning Asian Americans). Justice Holmes would have gone further if he could. In his Abrams v. United States dissent Holmes wrote “persecution for the expression of opinions seems perfectly logical.” What’s even worse, in his dissent in Kawananakoa v. Polybank Holmes wrote that citizens had no right to sue the federal government. Substantive due process has been pivotal in protecting many individual rights throughout our history: Meyer v. Nebraska (1923, the right to learn a foreign language among other things including marriage, the right to a legal profession, and the right to contract to name a few), Pierce v. Society Sisters (1925, the right to educate children in private schools), Skinner v. Oklahoma (1942, the right to procreate), Rochin v. California (1952, the right for individuals to be free from any government action that may “shock the conscience” and violate individual rights), O’Connor v. Donaldson (1975, right of non-dangerous mentally ill to avoid confinement), Griswold v. Connecticut (1965, the right to privacy – although it was not very well defined since the right is not absolute), Moore v. East Cleveland (1977, the right for a grandmother to live with their grandchildren), BMW v. Gore (1996, the freedom from excessive punitive damages), Troxel v. Granville (2000, the right for parents to make decisions for their children), Lawrence v. Texas (2003, the right to private consensual sexual behavior), and McDonald v. Chicago (2012, the right to self-defense) to name a few of many examples where substantive due process was necessary to prevent any government restrictions on individual natural rights that were not enumerated in our Constitution or Bill of Rights. In fact, none of the above cases are controversial in any regard because they make perfect sense to prevent intrusive and unnecessary government restraint. In fact, cases such as Gideon v. Wainwright (1963) where the Court held the Sixth Amendment applied to the states was a pivotal case for individual rights. Gideon was the first of many cases where the Court applied the Bill of Rights to the states despite earlier precedent holding the Bill of Rights only applied to the federal government. This was not officially substantive due process because the Court was merely applying rights to individuals already outlined in the Bill of Rights of the Constitution, but Gideon was just as important to recognize that individual rights are protected both at the state and federal levels as any substantive due process decision. The goal and entire purpose of the Constitution is to protect individual rights first and foremost. And without any compelling government interest to violate individual rights, then the law should be voided. It is that simple.