Regaining our Freedom and Liberty (Part I)

I am not a lawyer, but I have independently studied Supreme Court Case Law books written by Georgetown professor Randy Barnett. I am only a novice, but in my opinion the Court has been out of line with many of its decisions.

How can America regain its Freedom and Liberty and restore our Confidence in the Supreme Court? This is difficult task. Supreme Court nominee Neil Gorsuch said “If you like all your decisions, then you are not being a good judge.” This is so true, it is impossible to find solutions to all problems in the Constitution unless a judge decides to legislate from the bench. Here are few steps to put the Supreme Court back on track:

1. Overrule the 1873 Slaughter House cases. This is essential to restore the “privileges and immunities” clause of the Fourteenth Amendment. The Court has improperly used the “due process” and “equal protection” clauses to compensate for the loss of the “privileges and immunities” clause. Clarence Thomas attempted to bring back the “privileges and immunities” clause in his concurring majority decision in McDonald v. Chicago in 2010. The Supreme Court has even used the Commerce Clause to replace the missing “privileges and immunities” clause (see Atlanta Hotel v. United States or Katzenberg v. McClung).

2. Continue to limit the use of the Commerce Clause for economic issues only. The Commerce Clause has been expanded, especially under the FDR New Deal. The Commerce Clause was used to regulate not just interstate trade, but anything economic including intrastate activities (see Wickard v. Filburn). However, recently the Court has made a stand to limit the Commerce Clause to just economic issues (See Bond v. United States, United States v. Lopez, and United States v. Morrison).

3. Stop legitimizing legislation based on “emergencies”. The Court has granted the federal government expansive powers during times of war or crisis (the Depression). Some of the worst Supreme Court Decisions have come because of “emergencies”: Korematsu v. United States (WWII), Schneck v. United States (WWI), the Legal Tender cases (Civil War), and Wickard v. Filburn (the Depression). The Court should remain true to the Constitution as it did during the Korean War when deciding Youngstown Sheet and Tube v. Sawyer (Truman tried to seize steel companies).

4. Be wary of deciding cases based on data, popular consensus, or facts: stick with the law. Many times the Court has decided cases based on popular consensus (Plessy v. Ferguson, United States v. Cruikshank, and Korematsu v. United States), and misguided data and facts (Bradwell v. Illinois, Buck v. Bell, Mueller v. Oregon, O’Gorman v. Hartford Insurance, Roe v. Wade, and even cases like Carolene Products) 5. Stop deciding Dormant Commerce Clause cases. See my blog “Why the Dormant Commerce Clause is Bogus”.

6. Social Justice cannot be a determinate of any kind to decide any case. Consider the 1996 Romer v. Evans where the Court struck down a Colorado Constitutional Amendment that denied “preferential” treatment to homosexuals. In other words, homosexuals cannot obtain a job, for instance, because of a quota system. Instead, the Court found the provision to discriminate against homosexuals. However, the Court’s decision is hypocritical because it discriminates against other groups that are not gay. In his dissent Scalia points out that the majority decision in Romer is “heavy reliance upon principles of righteousness rather than judicial holding.” Roe v. Wade, Obergefell v. Hodges, and Lawrence v. Texas are good examples of social justice decisions by the Court.