Tuesday, June 19, 2018

Why Originalism Matters (Part VIII)

Police Power and Moral Justice Example:

The power of a state government to restrict, prohibit, or regulate rights is police power. The Constitution does not specifically enumerate any State rights because as Madison says in Federalist 45 they are “infinite”. The Fourteenth Amendment holds that the Bill of Rights in the Constitution applies to the states. Other than that, there are few restrictions on state police power. Typically, a state government can regulate, prohibit, or restrain personal rights to protect the “health and safety” of other citizens. However, state governments have also used police power to regulate “moral justice” as well. One example of this was provided earlier in Champion v. Ames were the Court prohibited the sale of lottery tickets in interstate commerce because gambling was seen as an immoral behavior or a bad vice.

In Mugler v. Kansas, Justice Harlan rejected a Fourteenth Amendment challenge to alcohol manufacturing and sales. He said “It cannot be supposed that states intended, by adopting that amendment (14th), to impose restraints upon the exercise of their powers for the protection of the safety, health, or morals of the community.” In other words, the State had a right to prohibit what it assumed to be “immoral” activity such as prostitution, gambling, alcohol, drugs, pornography, cigarettes, or other types of “bad vices”. Chris Tiederman developed the Libertarian point of view of liberty, freedom, and rights by saying “No law can make a vice a crime, unless it becomes by its consequence a trespass upon the rights of the public.” The reason for this is simple, people are not violating the rights of others by practicing their “immoral” vices. So according to Tiederman police power should be used to protect “safety, health, and public morals” of others. In other words, private immoral behavior or vices that do not affect the rights of other citizens should be protected from laws.

There may be some truth to this theory. For instance, in Lawrence v. Texas (2003 – overturned Bowers v. Hardwick, 1986), the Court overturned a Texas statute that made private homosexual sodomy illegal. For sure, this law has some issues. First, how do you enforce a law if people are having sodomy in private? Second, this act is not violating the rights of other citizens. Therefore, it is reasonable for the Court to overturn this moral justice law as being discriminatory as defined by the equal protection clause of the Fourteenth Amendment. But the Court was wrong by elevating sodomy as a Fundamental Right. Today, many so called “immoral” vices are gaining legalization traction. Marijuana is a good example as is gambling. Prostitution is legal in Nevada. Remember, alcohol was illegal and prohibited for many years before gaining a “moral” status. I can certainly agree to a large extent what Tiederman proposes is a good way for the Court to view so called immoral behavior in private.

However, I believe the issue is a little more complicated than what Tiederman proposes. What about the spread of sexually transmitted diseases to citizens that came from prostitutes? A husband goes to Vegas and sleeps with a prostitute and then transmits a disease to his wife when he gets home. That clearly violates the rights of the wife. Is all sex in private consensual and not a crime? Of course not: rape and incest are examples of right violating crimes. Doing drugs in private may hurt others if people drive under the influence (although the same can be said of alcohol). Should child pornography be allowed in private if it could hurt others if people act on their vice? What people do behind closed doors is their own business and for the most part the Court should not interfere. Many moral justice laws may have good intentions, but they can go overboard if they violate the rights of law abiding citizens who are not violating the rights of other citizens. For example, locking people up or fining them for private sodomy or masturbation is a bit overboard. This behavior may not be acceptable to some, but these laws do not violate their rights. With that being said, I cannot say with 100% certainty that what goes on in private will not necessarily or ultimately affect other citizens in a negative way. So some regulation may be required by state police power over private moral issues. For instance, possession of contraband does not hurt anyone or violate a person’s rights, but the use of contraband (like drugs or driving under the influence) can be regulated because it could violate another person’s rights.


Until the States invokes Article V and convene an Amendments convention then nothing will change. At an Amendments convention some proposals that may be useful include: repealing the Sixteenth and Seventeenth Amendments; placing Term Limits on Congress; bringing back the original meaning of the Commerce and Necessary and Proper Clauses; Limiting the Spending Clause to non-coercive methods; Congress cannot trump common State Laws that are on the books in half the states or preside over half the U.S. population; Supreme Court justices are not allowed to interpret the Constitution, they must use the original meaning at the Founding; allow the President a line item veto over budget bills to rein in spending; place the rights retained by the people as outlined in the 1866 Civil Rights Act and Bushrod Washington in Corfield v. Coryell as Fundamental, and reinstate the Privileges and Immunities clause.

Thursday, June 14, 2018

Why Originalism Matters (Part VII)


There seems to be an understanding that federal government power extends to anything that may be seen as a national problem. Liberals argue that healthcare is a national problem, but that is not necessarily true. Healthcare can be a local and state issue just as much as it is a national problem. For instance, ObamaCare is not solved as a national issue, but at the state level with each state creating its own ObamaCare insurance exchanges and even some states have decided to opt out of ObamaCare exchanges. Minimum wage is not a national problem because the cost of living not only varies a great deal between states, but between localities. Unions are not a national necessity because many states with thriving economies are right to work states (a Fundamental Right). Hence, Congress will use the guise of national problems to convince the Court to rubber stamp their agenda. After all, if it is truly a national problem, then only Congress can solve the problem, right?

Justices and the federal government are of the incorrect belief that one size fits all. Although most laws passed by Congress are discriminatory because they treat citizens differently (i.e. ObamaCare treats persons in a union differently than other citizens and it exempts Congress from using the healthcare law), they tend to think one concept such as ObamaCare (healthcare) or Abortion is a good idea in every state and locality. Forced abortion in highly religious states such as Utah makes very little sense. If Abortion is a good idea get it amended to the Constitution. ObamaCare policies have mandatory coverage for childbirth for all women including women older than 60. ObamaCare mandates people who do not have insurance to buy it even if they do not want it. ObamaCare forces companies to lay off workers or put them on part time to avoid paying fines. Even if ObamaCare provides needed healthcare to some Citizens, it is unconstitutional because in doing so, it violates the Fundamental Rights of other Citizens. Congress and the Court refuse to accept that all laws are not necessarily designed to function equally for all across all factions of the population. For instance, rural farmers are at the mercy of urban policy makers: Reynolds v. Simms was one of biggest travesties in this regard (Democracy or majority views take precedent over Republican views that defend minorities).

The Commerce Clause Example:

The Commerce Clause in conjunction with the Necessary and Proper Clause have been the most abused Clauses in the Constitution. The expansion of the Commerce Clause in the FDR Court was called by liberals as necessary because our Founders did not anticipate the implications of a complicated and interconnected modern economy. Once again this is not true. Madison said this of John Marshall’s decision in McCulloch v. Maryland (which held a national bank was Constitutional): “everything is related immediately or remotely to every other thing, and consequently, a power over any one thing, if not limited by obvious and precise affinity, may account to a power over every other thing.” Our Founders were smart, especially Madison, and he understood the intricate details of economics back in the 1820s when he wrote this statement.

The Commerce Clause states: "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Commerce typically means “trade” in its narrow interpretation which was by far the most common usage during the founding period. Commerce has nothing to do with the manufacturing of products or with agriculture. After all, the United States could not regulate manufacturing and agriculture with foreign nations or Indian Tribes. That makes no sense. In its broadest application Commerce could mean any “gainful activity” (for profit). Commerce was used hundreds of times within the Constitution, the Federalist Papers, at the Constitution Convention, and at State ratification conventions and Commerce always meant trade and nothing else. But regardless of the definition, the Commerce Clause today is applied by the Supreme Court in even more broad terms than gainful activity. In Gibbons v. Odgen decided by the Marshall Court, Marshall incorrectly gave the definition of Commerce a broader meaning than intended in the Constitution: “Intercourse”. In Gibbons, Marshall correctly asserted that Congress had the power to regulate ship navigation for commerce. However, in the 1895 case United States v. E.C. Knight and the 1936 case Carter v. Carter Coal Company the Court held that Commerce meant trade (not intercourse) and it did not include activities such as manufacturing or agriculture. In E.C. Knight the Court considered using the Sherman Anti-Trust Act to break up a sugar production monopoly and in Carter Coal the Court considered economic regulations on coal manufacturing. Of course, the Court was criticized by social justice liberals for their rulings in these cases because the Constitution must evolve to handle modern conditions. In 1937 in NRLB v. Jones, the Court overruled Carter (1 year later!). That is caving to political pressure. Is federal government control necessary over wages, hours, and union activities of workers? Of course not, most states have similar laws. For instance, states with a high cost of living have minimum wage laws that are higher than the Federal law (about half). States are fully capable of passing its own economic laws to keep up with modern times.

“Among the several states” means between the people of different states. However, the modern meaning of this term means nothing since the Court has given Congress the right to regulate intrastate Commerce. In Gibbons v. Ogden Marshall erred in defining “among the several states” as meaning “concerns more state than one”. At first this seems harmless but this definition justified future Courts to “regulate” intrastate commerce that may affect another state. Of course we know this is not the true meaning because Congress cannot regulate intrastate commerce that affects foreign nations or Indian Tribes.

To “regulate” means to make something regular. There is nothing in the meaning of to regulate to mean to prohibit commerce. However, the regulation of Commerce has also included the prohibition of commerce. This was first done in Champion v. Ames where the Court upheld a prohibition of selling lottery tickets over state lines. Selling lottery tickets intrastate or interstate does not violate the liberties, rights or freedoms of a single citizen. So it begs to reason why would the Court make such a decision. The answer is simple, the progressive Court was issuing moral justice, not the law (gambling is bad). As bad as this decision may have been, the majority did not say Congress had the right to regulate or prohibit commerce within a state. The Eighteenth Amendment (prohibition of alcohol) was ratified in 1919 because Congress did not have the right to prohibit alcohol using the Commerce Clause. A proposed amendment (but unratified) in 1926 sought to prohibit work of children under eighteen years of age. This is proof that regulation and prohibition are two separate items. In Hammer v. Dagenhart (1918) the Court found a law prohibiting the commerce of products made by children unconstitutional, but Hammer was overruled by 1941 in United States v. Darby violating the definition of regulation as identified in past precedent and the Eighteenth Amendment.

Under the broadest meaning of Commerce (Gainful activity – for profit) Congress could not legally enforce any law prohibiting alcohol, tobacco, drugs, guns, pornography, or other potentially illegal activities. In Wickard v. Filburn the Court established the “aggregate effects” doctrine. This means anything that has an aggregate effect on commerce can be regulated. In Wickard the Court held wheat regulations included those crops intended to feed one’s personal family were Constitutional. Think about the consequences of the “aggregate effects” doctrine for a moment. This means that anything we buy, such as a stick of gum, can have an aggregate effect on commerce and can be regulated. The Court even established the “the articles of commerce” doctrine which allows Congress to regulate any activity that makes use of any product that ever traveled in interstate commerce. The key word here is “activity” such as manufacturing, agriculture, or anything economic including wages, hours, work conditions, overtime, and so forth and so on. David Engdahl called this the “herpes theory of interstate commerce”. In 1995, the Court held in Lopez v. United States that for something to be considered commerce, it would have to “substantially effect” commerce. The Lopez decision also limited commerce to include only economic activities. This put a stop to the insanity but it was too little too late. The damage had been done. State police power had been diminished into federal police power over any economic activity including intrastate commerce and even prohibiting commerce. That is a lot of power that has been abused by the federal government monopoly with no oversight or checks and balances.

Saturday, June 9, 2018

Why Originalism Matters (Part VI)

Necessary and Proper Clause Example:

The meaning of “necessary” is incorrectly changed to “convenient” by both Alexander Hamilton (Bank argument) and Chief Justice John Marshall (McCulloch v. Maryland, 1819). Madison argued that by doing so would yield the federal government with limitless and boundless power that would come at the expense of the people and states. Ultimately, he was right. Marshall defended his decision by saying in no terms does the McCulloch decision yield the federal government unlimited power and Hamilton, of course, argued his stance of limited (enumerated) Federal Government powers quite differently in the Federalist Papers. Hamilton and Marshall wrongly accepted the idea a minor change to the current or interpreted definition of “necessary” would result in any federal power grab. However, the Necessary and Proper Clause has been used in conjunction with the Commerce Clause to allow the largest single power grab in our history to cover anything that is economic including a backyard garden, crime, banks, insurance, and civil rights (instead of using the Fourteenth Amendment). By moving away from textual originalism, the Constitution is worthless (meaningless) because it places no limits on federal government enumerated powers.

Are the departments of Agriculture and Education necessary? Our Founders did not think so because they were not enumerated powers. What about a department of Energy for modern times? Since these departments have been created agriculture, education, and energy costs have gone up higher than inflation (this violates the property rights of every citizen). In fact, education has gotten worse when compared to the rest of the World. Can the federal government handle these issues better than states? Apparently not. What about other departments that promote welfare such as Health and Human Services or Housing and Urban Development. Once again health and housing costs are going up faster than inflation. What about government sponsored healthcare such as ObamaCare, Medicaid, and Veterans Affairs? These programs are failing big time and their future liabilities are unsustainable. None of these departments are necessary and they are not enumerated powers and therefore should be controlled by the states.

What about the necessity of taxing people and companies to redistribute wealth to other citizens and companies? This is not allowed by the Constitution. The government may take property from private citizens (taxes, without just compensation is allowed through the Sixteenth Amendment), but the federal government is not allowed to redistribute wealth to other private persons. The federal government can only use taxes for public purposes such as those things enumerated in the Constitution: military, infrastructure (roads, bridges), etc. How “public” in the Constitution can also mean “private” illustrates why applying textual originalism is needed. Keep in mind, takings are usually enforced against poor citizens and given to wealthy citizens or companies. It is the opposite of welfare and liberals support both conflicting policies.

Remember, a law can be necessary but at the same time be “improper”. James Madison provides numerous examples of this type of law. Most Justices ignore the “proper” aspect of the necessary and proper clause when reviewing laws under this provision. For instance, in Schechter Poultry v. United States the Court ruled that because of the Great Depression code enforcement of some industries may be necessary, but it is not proper and therefore unconstitutional. A crisis does not provide the federal government additional constitutional grants of power (The Court would reverse course in just a few years after the Schechter decision). Our Founders were smart and anticipated the need for extra-constitutional authority in the Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people.” The uniqueness of the Constitution from other world governments was the separation of powers between the State and Federal Government known as federalism. This was the most important check and balance in our system to prevent tyranny and to keep the rights of the people unfettered. However, because of the expansion of the Necessary and Proper and the Commerce Clauses the Tenth Amendment has basically become moot. Most judicial scholars only view the Tenth Amendment as a truism with no other enforcement value. Of course, under this theory, the entire Bill of Rights can be considered a truism. The Bill of Rights consists of Rights that no one would contest (a truism), but they must be enforceable! Because of these bogus theories the States do not have much power while the Federal Government is continually expanding and growing in size. This is opposite to what James Madison said in Federalist 45 where he states government powers are few and limited but state powers are infinite.

Emergencies and Crisis:

Justices have used emergencies and crisis to warrant making unconstitutional measures constitutional. War and the Great Depression have led to some of the worst decisions in U.S. history. Unfortunately, the precedent from these emergencies and crisis are still good law today. The First Amendment’s “clear and present danger” doctrine is still used but we are no longer at war. All of the FDR Court’s economic decisions are still law but we are no longer in a Great Depression. The interment of the Asian race is still law (Korematsu) even though WWII has been over for 75 years. None of this would happen if Justices were consistent and interpreted laws using the original textual meaning regardless of the circumstances.

Tuesday, June 5, 2018

Why Originalism Matters (Part V)

Modern Examples:

Most people do not believe that originalism takes into account modern events. For instance, what if the police used “infrared technology” outside a residence to determine if marijuana was being cultivated without a warrant. Is this an illegal search and seizure under originalism? Most say no because the Constitution does not take into account modern technology. The Fourth Amendment says: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The Fourth Amendment protects all citizens from “unreasonable” searches and seizures without a warrant and probable cause. It does not matter what method or technology was used. If the home was searched without a warrant and it was deemed unreasonable, the act violated the constitutional rights of the home owners. The Constitution’s vagueness or broad provisions allow its meaning to account for modern advances in society.

How about a Commerce Clause example where manufacturing emissions and agriculture waste are being transported over state lines through the air and water? Our Founders certainly did not envision manufacturing pollution may affect the rights of citizens. Although, Congress has no power to regulate manufacturing and agriculture, but only goods and services traded across state lines, it is hard to envision how the Commerce Clause could be used for pollution or waste. This is certainly one of those borderline cases and I could see this one going either way. That being said, the best was to handle the situation would be by an amendment if the Constitution is out of date. Many Senators proposed amendments for the Commerce Clause such as Edward Costigan and Henry Ashurst during FDRs early years. Castigan wrote the Commerce Clause should be changed “to regulate hours and conditions of labor and to establish minimum wages in any employment and to regulate production, industry, business, trade, and commerce to prevent unfair methods and practices.” Ashurst proposed the Commerce Clause should “regulate agriculture, commerce, industry, and labor.” Of course, these amendments were not needed when the FDR Court incorrectly granted Congress all these powers. However, if these amendments were passed (and I would have been against them because it yields too much power to Congress), it would have brought legitimacy to the Court’s rulings including regulating emissions and waste across state lines. Castigan and Ashurst proposals do prove one thing: The FDR Court completely changed the meaning of the Commerce Clause in the Constitution to meet their agenda.

How about a Second Amendment example. For the most part Justice Scalia used Originalism to guarantee the Fundamental Right to keep and bear arms for self-defense in his Heller v. D.C. majority opinion. Justice Stevens’ dissent never contests Scalia’s Originalism argument, but instead offers a different non-constitutional point of view in his opinion. Would the Second Amendment right extend to assault weapons or limitations on magazine rounds? For assault weapon and magazine regulations to happen the government must prove their regulations are not irrational, arbitrary, and discriminatory. This is not easy to do. In other words, it would be hard for the government to prove that assault weapon and magazine regulations would curtail crime by any substantial amount. Furthermore, it is hard to determine the difference between assault weapons and high powered hunting rifles. Hence, assault rifle bans can be seen as discriminatory because similar types of hunting rifles exist without regulation. In his majority opinion Scalia veered from Originalism when he pointed out some possible regulations for guns such as prohibiting felons and the mentally ill from owning a gun. Scalia incorrectly practices what he calls “faint-hearted originalism”. In other words, there are instances where he would veer from Originalism such as cases where precedent may trump Originalism. This is not correct, a judge should be consistent and follow the same methodology for all cases. Using Originalism and or Precedent is a means to have options to get the desired result. This is wrong. Regulations such as prohibiting felons and the mentally ill from owning a gun could further restrict the rights of someone who was wrongfully convicted or someone wrongfully diagnosed. What is the purpose of medication to help people with mental issues to function in society if we are going to restrict their Fundamental Rights with no exception? It is a stretch to say all felons and all people with a mental illness should be prohibited a Fundamental Right without exception. There is no difference when liberals argue to give felons back the right to vote. If a person is deemed responsible to vote, then should they be deemed irresponsible to own a gun? The Second Amendment was constructed so citizens can defend themselves not only from criminals but from a tyrannical government. If the Constitution failed and the federal government abused the rights of citizens then State militias had a right to defend its citizens. Using the original meaning, since citizens were allowed to keep and bear arms of military proportions during the founding period then this would equate to large magazine capacity and assault weapons today.

I am not in agreement with many aspects of the Constitution such as the Sixteenth Amendment (Income Tax), Seventeenth Amendment (Popular vote for Senators), the Takings Clause of the Fifth Amendment, and the fact the Constitution provides no term limits on Congress. However, as imperfect as the Constitution may be, I will respect the entire document: the good provisions and the bad provisions. Nothing in government is perfect so taking the good with the bad is nothing new. We cannot pick what we like and what we do not like. It does not work that way. As Sanford Levinson wrote “Almost all constitutional analysis, as a matter of brute fact, seem committed to a de facto theory of happy endings, whereby one’s skill as a rhetorical manipulator are devoted to achieving satisfying results.” Modern examples of Constitutional interpretation are meaningless because the truth of the matter is the Necessary and Proper Clause, the Commerce Clause, the Ninth Amendment, the Takings Clause, the Privileges and Immunities Clause, and the Tenth Amendment have no meaning and have been completely redacted from the document. This is the danger of amending the Constitution as proposed by scholars such as Bruce Ackerman – through Judicial Decisions. This would certainly make the Supreme Court the most powerful branch in the federal government. And we know the Court’s decisions will become even more biased based on political ideology and not neutrality to protect the rights of all equally if Amendment by Judicial Decision was law of the land. Judicial precedent is completely different from allowing precedent to amend the Constitution. This is very dangerous.

Friday, June 1, 2018

Why Originalism Matters (Part IV)

Levels of Scrutiny:

There are many levels of scrutiny applied by the Court and it depends on the issue at hand as to what level of scrutiny applies: strict, intermediate, or rational basis scrutiny. Strict scrutiny is used by the Court to defend most Fundamental Rights. In these cases, such as free speech, the burden of proof is on the government to show that a law regulating free speech is necessary and proper or compelling to achieve a government objective. The government must also show that the law is the least restrictive means to achieve its ends. Rational basis scrutiny is the opposite of strict scrutiny. The burden of proof is on those claiming the law violates some right and the government can choose any means to achieve the ends they want. The government does not have to show any evidence or empirical data to back up its claims. Cases such as Carolene Products and Williamson are good examples of rational basis scrutiny cases. The problem with these two types of scrutiny is that the government rarely wins in strict scrutiny cases and the government almost always wins in rational basis scrutiny. Since levels of scrutiny to be applied for most cases is open for debate, Justices can pick the level of scrutiny that achieves the result they desire. Like presumption, this is another way Justices can avoid “judicial review” and refuse to say what the law is. Both conservative and liberals are guilty of this technique to evaluate cases. In FEC v. Beach Communications it is Justice Stevens who objects to the conservative choice of the rational basis test saying “it is difficult to imagine a legislative classification that could not be supported by a reasonable conceivable state of facts.” He is right. In fact, the only case that failed a rational basis test that I can recall is City of Cleburne v. Cleburne Living Center (I am sure there are a few others).


The Constitution is similar to any written contract in many respects. Contracts are interpreted textually. Take for instance the parole evidence role “which rejects evidence that contradicts the meaning of the contract at the time of its formation.” The Constitution is no different: “Written documents cease to perform their function if meanings can be changed in the absence of an equally written modification or amendment.” Furthermore “overriding written contracts to reach results that some deem superior places the rights of everyone at peril.” What is binding government if not the Constitution? Unfortunately, it is the opinions of legislators and justices who want to expand their power and corruption at the expense of citizens’ rights.


The Constitution can be amended to keep up with the changing times. Unfortunately, most people do not have the patience (the partiality principal and issue with majority factions) to go through this process so they must rely on the Court to legislate decisions for social and moral justice. In well over two hundred years the Constitution has only been amended 17 times (and 2 were for prohibition and the repeal of prohibition). That means only 15 new ideas have been amended. And two of those Amendments (Sixteen – Income Tax, and Seventeen – Choosing Senators by popular vote) should have never been passed because they provide the federal government with unlimited coercive powers. I take the limited amount of amendments to mean that the original meaning of the document must be sound. If the Constitution fails to meet modern requirements to the satisfaction of a special interest group or people this is a problem with the Constitution, not originalism. Originalism is still a valid method to interpret the Constitution.


There have been many times when the Court has deferred to state laws in the name of experimentation but there have been other times the Court has failed to yield the same type of patience with state laws. Louis Brandies said a "state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” A good example of this in modern times is medical and recreational marijuana. Many states are experimenting with marijuana laws even though the Federal Government views marijuana as illegal. States should be allowed to experiment as long as laws do not infringe on the rights of its citizens. Experimentation is no different than the concept of federalism found within the Tenth Amendment. The Supreme Court does not have to act on social issues such as marijuana, gay marriage, and abortion. It should be left up to the states to experiment with laws to find those laws that work best and those that do not. For instance, it should not be up to the Supreme Court to legislate its trimester theories in Roe v. Wade, which were later abandoned in Casey v. Planned Parenthood less than 20 year later. The Supreme Court is not an expert on marijuana or abortion and therefore it is outside their realm to make legislative directives on such topics. This is the true meaning of federalism: to let States figure out laws through a trial and error process and through the will of the people in each state so long as they do not violate the rights of citizens without compelling reasons. Once something becomes socially accepted, recreational marijuana or gay marriage can be amended to the Constitution like previous civil rights and social issues such as women’s suffrage and the abolishment of slavery. We do not live in a perfect society, humans make mistakes, and sometimes we need to learn from those mistakes before laws are perfected. Remember, mistakes made through state legislation are much more desired than mistakes made by the Supreme Court which can violate the rights of millions more persons.

Sunday, May 27, 2018

Why Originalism Matters (Part III)

Justices routinely hand down verdicts that rewrite clauses of the Constitution because in doing so would be morally superior such as deeming diversity laws, economic laws, gay marriage, or abortion laws as Constitutional. However these same Justices say they came to their decision by interpreting the Constitution (or some form of originalism). This is false. There is no way they could have come to these conclusions through textual originalism. How do we know this? Because these same Justices also use terms such as “This is a Constitution were are expounding” or “the Constitution is a living document”. In other words, the textual meaning of the Constitution changes over time. Hence, they cannot say they are interpreting the Constitution in its original form. Why take an oath to protect and serve the Constitution if a Judge is really not? Why not throw the Constitution away if it no longer has any pertinent meaning? People cannot pick and choose the provisions that are satisfactory to them and those that are not. This is hypocrisy. We cannot say, I agree with the Bill of Rights except the Tenth Amendment, this is not how it works. Liberals will use original intent or textual interpretations when the means suits the ends they are trying achieve and resort to rewriting clauses when original intent does not satisfy their moral or social justice goals. You cannot have it both ways. Inconsistency is a real problem with Constitutional interpretations and it has to stop. Why can liberals use originalism to interpret that each State should have two Senators, but insist that that the commerce clause means social activity (not true) and not trade during the founding era? You cannot have it both ways.

The Presumption and Ninth Amendment Example:

Presumption was introduced by Harvard Professor Thayer in an 1893 article. Presumption was first used by the Court in Justice Harlan’s Lochner dissent. In essence, Presumption assumes state and federal laws are constitutional unless it can be proven otherwise. In other words, the burden of proof lies with those who claim their rights have been violated and it is presumed the government is choosing the proper means to attain an ends. This is of course hypocritical to the entire concept of the Constitution and that is to place limitations on the government and not to limit the rights of citizens or corporations. Presumption was invented and goes against any textual explanations during the founding era requiring Judicial Review. As John Marshall stated in Marbury v. Madison it is the duty of the Court to say what the law is. It is not the duty of the Court to invent judicial theories to influence favorable outcomes. Presumption was popular with liberals primarily because it placed restrictions and regulation on those presumed “evil” corporations. It was a means of punishing capitalism and the wealthy to achieve the ends of social justice. Presumption essentially provided unlimited power to any state or federal legislative branch to be judge, jury, and executioner of any law with no judicial review or oversight. In Federalist 10 Madison says impartial judges are needed because individuals could not be trusted to overlook their own violations of the law. Well, the same can be said of the necessity of Supreme Court’s check on Congress. Presumption of liberty makes more sense than Presumption of government power.

Presumption was first used by the FDR Court in 1931 by Justice Brandies in O’ Gorman v. Hartford Fire Insurance. Presumption was also used in West Coast Hotel v. Parrish to overrule the Fundamental Right to freedom of contract established in Lochner. In Carolene Products v. United States the FDR Court used presumption to uphold a federal statute that made it illegal for Carolene Products to ship “filled milk” products via interstate commerce (prohibited – more on this later). In the Carolene Products case, scientists and experts testified that “filled milk” was bad for humans. In 1972, a circuit Court overruled the Carolene Products decision in Milnot v. Richardson (Carolene Products changed its name to Milnot). The Court rightly asserted that dozens companies ship products similar to milk and “filled milk” in interstate commerce. It was both discriminatory and irrational to deny Milnot the same freedom. Today, “filled milk” is shipped throughout the United States because we learned the truth: filled milk is better for humans than any regular type of milk and the government now refuses to contest these facts. The bottom line is in the Carolene Products case dairy farmers and their lobby were much more powerful than a single company and by putting forth false information the dairy lobby was able to convince the Court to discriminate against their competition. More recently, in Nebbia v. New York the dairy lobby was able to regulate higher milk prices so mom and pop retailers would be forced out of business. The regulation in Nebbia was both similar to Lochner where a discriminatory maximum hours regulation also targeted mom and pop shops and Carolene Products where the power of special interests convinced the Court to discriminate against the right to a lawful occupation for mom and pop milk retailers.

All this said, the Carolene Products decision is best known for “Footnote Four” in Justice Stone’s majority opinion and not the travesty of injustice delivered by the Court. In Footnote Four Justice Stone points out a few instances when Presumption can and should be challenged. In other words, Footnote Four placed some limitations on Presumption. One limitation for challenging Presumption is when any Fundamental Right outlined in the Bill of Rights is put into question by a state or federal law. The FDR Court has been highly regarded by history. However, if the Footnote Four doctrine was truly practiced by more modern Supreme Courts then the Right to Privacy elevated as a Fundamental Right in Griswold v. Connecticut would have never happened. Justice Douglas labored in his majority decision in Griswold for two reasons. First, Douglas had to dance around his previous presumption decisions such as Williamson v. Lee Optical. In Griswold, Justice Douglas does not change his opinion in Williamson which denied a person to the un-enumerated Fundamental Right to a “lawful occupation”. Justice Douglas says in Williamson “the law need not be in every respect logically consistent with its aims to be Constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.” The “evil” that Lee Optical was performing as a business is what Lens Crafters is legally doing today. Justice Douglas then claims that “The prohibition of the equal protection clause goes no further than invidious discrimination.” In other words, the Court adopted the discrimination theories put forth by the revered Justice Oliver Wendell Holmes. Secondly, Justice Douglas also had to dance around the Footnote Four exceptions since the right to privacy did not qualify for an exception to the doctrine since it did not exist in the Bill of Rights. Justice Douglas does this by declaring “Specific guarantees in the Bill of Rights have penumbras formed, by enumerations from those guarantees that help give them life and substance.” This has been one of the most controversial sentences in Supreme Court history. Finally, the Court generated a distinct conflict of interest between “personal rights” such as privacy (Griswold) and “personal economic rights” such as owning property, the freedom of contract, and the right to a lawful occupation (Williamson). Personal rights would be protected using strict scrutiny while personal economic rights would be protected by rational basis scrutiny (this is like having no protection – more on this later).

Without Griswold then Roe v. Wade (abortion), Obergefell v. Hodges (gay marriage), and Lawrence v. Texas (sodomy) would have never had a path towards legalization. It is interesting to note that although presumption overruled Lochner’s Freedom of Contract, the Lochner Era Court also elevated several Fundamental Rights in Meyer v. Nebraska (Right to Knowledge, Occupation, and Marriage among several outlined) and Pierce v. Society of Sisters (right for parents to choose educational options for their children) which were ironically both cited in Griswold by the majority opinion (although the same Court denied many of these rights in Williamson v. Lee Optical a decade earlier). It is also important to note that Holmes, of course, dissented in both the Meyer and Society of Sisters cases. Lochner has been criticized for over a century by liberal and conservative judicial scholars, but the same principles of Constitutional textual originalism used by the Lochner Era Court in the Lochner decision were used in Meyer and Society of Sisters which are still solid law today. So how did the much maligned Lochner Era Court save the day for Social Justice Liberals in Griswold? It was because the Lochner Era Court interpreted the Constitution correctly and the much revered FDR Court and their liberal progressive hero Holmes did not. Howard Gilman says “Lochner era police power jurisprudence was both coherent and continuous with the underlying principles of the founding. This makes the FDR New Deal Court a rejection of constitutional jurisprudence: a revolution and not a restoration.” Lochner era jurisprudence was incorrectly labeled as being Laissez Fair when it was really an “aversion to class legislation” or an outlet for “class neutral legislation” that did not favor or discriminate against any group of citizens. Other Courts cannot make the same claim.

I believe Fundamental Rights can be elevated through either the Ninth Amendment or the Privileges and Immunities Clause of the Fourteenth Amendment. Of course the Privileges and Immunities Clause has been incorrectly written out of the Constitution in the Slaughter House Cases and the Ninth Amendment is long forgotten. Justice Goldberg used the Ninth Amendment in his reasoning for Griswold (he was the only Justice out of 7 to do so) and Justices Kennedy, O’Connor, and Souter used the Ninth Amendment in Casey v. Planned Parenthood (Roe v. Wade follow up in 1992). Most scholars (both liberal and conservative) have tried to minimize the impact and relevance of the Ninth Amendment and most Justices have been reluctant to use it because they are afraid of opening “Pandora’s box”. Justice Scalia refused to use the Ninth Amendment in Troxel v. Granville even though he agreed with the majority that parents had the Fundamental Right to make decisions regarding their children. Some scholars have said that the Ninth Amendment only applies to states and not the federal government (like the Tenth Amendment, scholars claim the Ninth Amendment is a federalism clause). This is false, by using the original meaning of the text as drafted and explained by James Madison the Ninth Amendment consists of all Fundamental Rights not enumerated in the Constitution. Other theories limiting the power of the Ninth Amendment include the “residual rights” theory. A good example of this is illustrated in United Public Workers v. Mitchell where Justice Reed wrote “If granted power is found, necessarily the objection of invasion of those rights reserved by the Ninth and Tenth Amendments, must fail.” In other words individual freedom, rights, and liberty must take a back seat to enumerated federal powers. This is nonsense! No Justice has ever given a government enumerated power more consideration than the say the First Amendment. So why would the Ninth and Tenth Amendments be treated any differently? The Constitution has been described as an island of government powers surrounded by a sea of rights and not the other way around. Rights came first, then came the government, and then came the law. That is why the Constitution was written to protect individuals from government intrusion and restrictions. It would make no sense to protect the government at the expense of the people. This goes against any Federalist or anti-Federalist views during the Founding era. As Randy Barnett asserts “Ninth Amendment skeptics have always seemed to think that when a provision is inserted merely for greater caution, this means it has no function apart from serving as some sort of enforceable warning.” Moreover “They consistently overlook how such cautionary rights can serve as a redundant or secondary line of defense when other primary constraints on government power fail.”

The moral of this story about the history of Presumption and the Ninth Amendment is for Justices to stop making up legal nonsense and interpret the textual meaning of the Constitution. By doing so, the Court halt its bad decision making process that led to travesties such as Williamson, O’Gorman, Parrish, and Carolene Products. Furthermore, the Court would not place themselves in a legal dilemma for future cases such as Griswold, Roe, Lawrence, Obergefell, and Casey. Of course, I do not believe all of the Fundamental Rights elevated in these cases are truly Fundamental, but I have written about that issue in the past (For instance, why is abortion a Fundamental Right, but transportation was denied as being a Fundamental Right? Because Fundamental Rights are arbitrarily elected and denied by Justices with political agendas – the opening of Pandora’s Box).

Tuesday, May 22, 2018

Why Originalism Matters (Part II)

Consent and Majorities:

Our Founding Fathers wrote a Constitution that founded a Republic and not a Democracy. The Founding Fathers did not trust majorities (popular sovereignty) of people to make decisions that would not diminish the rights of minorities. Madison called this the problem of “factions” in Federalist Paper 10. Today, we know factions as being “special interest” groups. I have discussed my personal issue with joining groups or organizations because of the problem with factions pushing unrealistic political agendas. The United States literally has millions of factions (special interest groups) and each is governed by it its unique set of bylaws. Our founders wanted to avoid the situation of factions and majorities as much as possible in politics. However, many Republican concepts in the Constitution have been amended such as allowing the election of Presidential and Senatorial (Seventeenth Amendment) candidates through a popular vote. These actions have seriously mitigated the separation of state and federal government powers (Federalism). These actions have also escalated the problem of factions and majorities. No United States citizen has consented to the Constitution other than public officials and immigrants who take an oath to protect and serve the Constitution of the United States. Hence, it is difficult for individuals, factions, or special interest groups of people to accept political choices they reject. People live by what is called the partiality principle. In other words, citizens favor rights for themselves and those they know over strangers. For instance, many people reject the Trump presidency but this is the difficulty with majority rule and the lack of consent: acceptance is not always easy. Those that reject Trump cannot understand or care to understand how hundreds of thousands of strangers in the Rust Belt are suffering and decided to change Party loyalties. The same can be said of those who rejected Obama because they were not sold on a message of “hope and change” that would redistribute wealth. Just as anti-Trump supporters do not understand the rationale of the other side, anti-Obama supporters do not understand the appeal others found in his message. This conundrum of divisive and polarizing majority factions was an issue that the Constitution tried to prevent since the President was not initially elected via a popular vote.

Of course, there is always the first major Supreme Court decision, Chisholm v. Georgia, in 1793 to help shed light on the issue of consent. In that decision, the Court said sovereignty lies with the people and not the State or Federal Governments. Hence, individual sovereignty over popular sovereignty existed making each individual, in essence, in charge of its own personal government. Consent is not needed if each individual is sovereign. If fact, state and federal governments must consent to the people! Most scholars say the Eleventh Amendment overruled Chisholm two years later, but Chief Justice Marshall calls Chisholm solid law in Calder v. Bull decades after the ruling. However, Marshall’s input is widely ignored so “popular sovereignty” is asserted by future governments and Courts at the expense of the rights of the people.

The polarity of factions is all the more reason for judges to strictly adhere to the text of the Constitution. Otherwise the Court is just another mechanism where majority special interest groups will force their will on minority groups. Today, there are literally hundreds of thousands of factions (unions, lobbying companies, companies, and other factions with strong political ties – abortion, pro-life, NRA etc.) trying to carve out exceptions in legislations at the expense of others. I did not like it when Obama circumvented the Constitution to push his agenda. For instance, Obama’s immigration policy violates the rights of citizens if their taxes support illegal immigrants to stay in this country. The Constitution was designed to keep the government in line (the converse to keep citizens in line is not the function of the Constitution). Each Constitutional breach allows the government to have more power that is used to restrict the rights of non-consenting individuals and factions which are working to divide Americans each and every day.

The more consent a person yields, the less freedom they have and vice versa. For example, if you live in a housing development tied to a home owners association (HOA) you have consented to live by the laws of the HOA. By contrast, since most citizens are non-consenting participants of the federal government, we have more freedoms that we expect to be protected by our Constitution. Without consent, rights of any citizen may not be abridged without a “proper” or “compelling” reasons. Remember, first comes our rights, then comes government, and then comes laws. Hence, government and laws are designed around our rights and not vice versa. The government does not have any rights, they have enumerated powers. Only people and corporations have rights in the Constitution. Pennington said that “they who are to govern by laws should have little or no hand in making the Laws they are to govern by.” This was the reason the Constitution was constructed with so many checks and balances. The goal was to mitigate tyranny that may result from majorities or corrupt leaders. Unfortunately, Justices practicing presumption or judicial restraint are not doing their job to keep the Legislative Branch in check. By presuming laws are Constitutional or restraining from voiding laws that may be unconstitutional – the Legislative Branch has a blank check to violate human rights. Justices are merely a rubber stamp for Congressional agendas which create more government power and further restrict the rights of people who are non-consenting participants in the system. The problem when the Court validates unconstitutional laws of moral and social justice is it will upset the many growing angry factions in our country. For instance, Fundamental Rights is a subject that Americans should all agree 100% of the time because violations of such rights would affect each of us the same. Elevating controversial and divisive issues as Fundamental Rights is not only dumb, it is unconstitutional (i.e. Abortion). Playing politics on the Court will inevitably upset large factions of groups across the country. For instance, affirmative action and diversity social justice laws provide more rights to one person and take away rights from another. How can this type of discrimination be Constitutional? (University of California v. Bakke and Grutter v. Bollinger). Two wrongs do not make up for the slavery injustices in American history.

The Court may find laws Constitutional simply because it is what the majority or what science supports. This has led to many horrific discriminatory decisions such as Dred Scott v. Sanford (blacks have no Constitutional Rights), Plessy v. Ferguson (separate but equal racist doctrine), Buck v. Bell (mandatory sterilization), Carolene Products (corporate rights denied), Williamson v. Lee Optical (corporate rights denied), Mueller v. Oregon (women rights denied), and Bradwell v. Illinois (women have no occupational rights) to name a few of the worst offenders. Majorities and science are not always right: women and blacks are inferior to white males, all intellectually challenged persons will give birth to intellectually challenged persons, filled milk has no nutritional value, and technicians cannot operate medical equipment have all been widely accepted scientific theories that have been rebuked. And if majority rule is not enough, those factions with the most money can win legislative victories and debunk science. Textual originalism is obviously preferred over any interpretation mechanism that generates bad and inconsistent decisions subject to reversal.

If majority rule got its way under the guidance of the revered Justice Oliver Wendell Holmes then there would be no private schools (only public ones – Pierce v. Society of Sisters); war places restrictions on free speech (Schenck v. United States); Holmes would probably still push for the mandatory sterilization of the intellectually challenged (Buck v. Bell); women would not be permitted to work (Mueller v. Oregon and Adkins v. Children’s Hospital); blacks would still be segregated and forced into servitude by bogus work contracts (Baily v. Alabama); teachers would be imprisoned for teaching a foreign language to students under 10 (Meyer v. Nebraska); and no one would have any contract rights over their occupational wages and hours (Lochner v. New York). In Nobel State Bank v. Haskell Holmes wrote “It may be said that the police power (power of state governments) extends to all public needs.” Moreover, Holmes in his Haskell decision wrote this about state statutes: “the prevailing majority or strong and preponderant majority to be greatly and immediately necessary to the public welfare.” In a majority rule society run by government legislations, the minority can have their rights mitigated or violated as with the many examples listed above. Holmes wrote of the Fourteenth Amendment in his Lochner dissent (a decision widely regarded as bad and Holmes was in the right): “I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominate opinion.” In other words, it is okay to violate the rights of women, blacks, teachers, schools, the intellectually challenged, and workers if the majority says it is okay. In his Lochner dissent Holmes also writes “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statistics.” Social Statistics is a book written by Herbert Spencer whose major theme throughout the text is that there is a fundamental equality between all persons. In other words, in Holmes view, there is no equal protection of laws under the Fourteenth Amendment. If this were true, then Brown v. School Board would have never been found Constitutional nor a host of hundreds of different civil rights and anti-discriminatory laws over the years. My only point is to beware of majority rule and to understand that imaginative Justices and government laws have diminished many of the protective clauses found in the Constitution to prevent problems with factions, majorities, or bad Justices like Oliver Wendell Holmes.

Before moving on it is important to understand why Lochner was decided correctly and a majority of both liberal and conservative judicial scholars have been wrong about this decision for the past century. First, freedom of contract is a Fundamental Right. It is listed as a Fundamental Right in the Civil Rights Act of 1866 which the Fourteenth Amendment was written to enforce. By restricting hours of bakery workers it would obviously limit bakery workers right to provide for their families. Secondly, and it is never mentioned, but the New York law was designed to help big bakery corporations at the expense of mom and pop shops who could not afford to employ more workers. Third, most people do not realize that the New York law had dozens of provisions for public health and safety that were upheld including ceiling height, whitewashing the walls every three months, only cats were allowed on the premises, floors had to be concrete, and so forth and so on. Only the 10 hour work day and 60 hour work week were held unconstitutional not only because the law violated the rights of the employer and employee relationship (contract), but these provisions provided no public health benefits. Fourth, the Slaughter House cases have been widely accepted as being decided incorrectly. The majority decision of Lochner uses the dissent’s approach in the Slaughter House cases to stress people not only have a right to contract, but they have a right to the occupation of their choice without restriction or interference from the government. Most people incorrectly believe that the right to contract for work was invented by the Lochner Court. This is not true, work contracts have been deep rooted in American history and tradition with Court precedent to back it up. The principle of “free labor” existed before the Civil War and was a term used by abolitionists. Free Labor was “the right to one’s labor was one’s own, and could only be alienated by consent.” The concept of “free labor” was upheld in the 1865 Court decision Ford v. Jermon. Obviously, the “free labor” concept and the “freedom of contract” found in the 1866 Civil Rights Act were specifically designed to prevent both slavery and employer abuse. In Baily v. Alabama, Justice Holmes sides with discriminatory work contracts that solely target black workers, and in Lochner he sides with a similarly discriminatory work law that not only targets bakers but it favors union workers. Why does Holmes disagree with work contracts in Lochner as being perverted but is perfectly fine with work contracts in Bailey? There is no other explanation then he was a typical hypocritical Justice who changed his stance for political and even bigoted purposes to conform with majority special interests. Finally, for these reasons, the New York law was discriminatory because it favored one group of persons (other professions and unions) at the expense of another (Bakery workers).

The right to contract was overruled by the Court in West Coast Hotel v. Parrish by the revolutionary FDR Court. In Parrish, a minimum wage was placed on working women only. This was another discriminatory law whose sole purpose was to eliminating women from the workforce. After all, who would you employ an expensive woman or a less expensive man? The bottom line is that child labor laws may help some kids, but what about children who want to work before 16? I started to work when I was 10, but it was my choice and companies were willing to pay me under the table. A higher minimum wage law may help one person get more money, but it may also violate the rights of another worker who must be laid off by the company because they have to pay a higher minimum wage. Social justice laws do not accomplish the political ends they intend to accomplish since they will unintentionally discriminate. Hence, social or moral justice will abridge the Fundamental Rights of some citizens at the expense of others. Passing discriminatory laws that violate the rights of some is the best way to achieve the result of having factions of people divided and polarized in society. Let’s examine several other reasons and examples why textual originalism is the preferred method to examine cases.