Making Sense of Substantive Due Process (Part II)

Substantive due process is a way for the Court to reconcile three important documents with the Fourteenth Amendment of the Constitution. First, the Declaration of Independence which states, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed ….”. Secondly, the 1823 case Corfield v. Coryell defines what it is meant by the privileges and immunities clause in the Constitution: “The inquiry is, what are the privileges and immunities of citizens in the several states? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state; may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental: to which may be added, the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised. These, and many others which might be mentioned, are, strictly speaking, privileges and immunities, and the enjoyment of them by the citizens of each state, in every other state, was manifestly calculated (to use the expressions of the preamble of the corresponding provision in the old articles of confederation) ‘the better to secure and perpetuate mutual friendship and intercourse among the people of the different states of the Union’.” Thirdly, the Civil Rights Act of 1866 defined privileges and immunities as: “That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.”

The Declaration of Independence, Corfield v. Coryell, and the Civil Rights Act of 1866 were the main elements incorporated into the Constitution via the Fourteenth Amendment in 1868. Also, the natural rights contained in the above-mentioned documents can also be implied through the Ninth Amendment suggesting any rights not included in the Constitution should not be denied or disparaged. All persons are born with natural rights which must be the number one priority of any free government to protect and the only way to successfully achieve this goal is via substantive due process since thousands of natural rights are not outlined in the Constitution. Constitutional Convention member, James Wilson, opposed the Bill of Rights because it was impossible to outline all the natural rights that should be protected and he feared that doing so will disparage the rights not mentioned in the document. This fear brought about the Ninth Amendment, but the amendment has been very rarely used to protect individual natural rights. Therefore, Wilson was right, protecting some rights within the confines of the Constitution has disparaged thousands of rights.

Originally, I thought the first occurrence of substantive due process in American History was in Dred Scott v. Sanford (1857). However, this is not true, the doctrine had existed in English law prior to Constitution and was introduced into Constitutional law very early in our history. In Calder v. Bull (1798) Justice Samuel Chase wrote that the transfer of property from one person to another contradicted natural law and was unconstitutional. The Court reiterated Calder v. Bull in Terret v. Taylor (1815) and Wilkerson v. Leland (1829). In Hoke v. Henderson (1833) the Court held that holding a public office was also private property and it could not be taken away without due process of the law. Dartmouth College v. Woodward (1819) was an interesting case because the State of New Hampshire attempted to cancel the school’s charter to force it to become a public institution. Daniel Webster defended Dartmouth College through substantive due process claiming New Hampshire violated natural law by passing a bill of attainer. The Court ruled in favor of Dartmouth but did not adapt the substantive due process theories of Webster. In the 1852 case Bloomer v. McQuewan the Court adopted the “First Sale Doctrine”. This substantive due process ruling protected people from prosecution for reselling a product they legally purchased without violating copyright or trademark protections. For example, a person can resell a legally purchased book without facing prosecution from the author of the book for copyright violations. In Sharpless v. Mayor of Philadelphia (1853, Pennsylvania case) and Stockton and Visalia Railroad v. City of Stockton (1871, California case) the Courts found it legal for a city to tax its residents with the proceeds going to a private company to finance a railroad project. However, the Supreme Court rejected the rationale in both Stockton and Sharpless in Loan Association v. Topeka (1874). The Court held that redistribution of wealth through taxes violated the Fundamental Natural Rights of individual property rights. Persons ought to have the right to do anything lawful with their own bodies and their possessions without any government interference or restrictions so long as their actions do not violate the rights of others. Although liberals would agree that tax money should not be used to supplement the finances of a private company, they would adamantly disagree with preserving natural rights because they believe property (money) can be taken away from one private citizen and given to other private citizens in the form of welfare. Welfare violates the basic principles of individual natural rights to do as they lawfully please with their property (money).

Making Sense of Substantive Due Process (Part I)

Substantive due process is a doctrine used by some Supreme Court Justices to protect individual liberties and natural rights that are not mentioned in the Constitution. Before studying Constitutional law, I was adamantly against the use of this doctrine because it allows Justices the freedom to introduce their opinions and biases instead of deciding cases based on the law. For instance, both Dred Scott v. Sanford (1857, protect the slave property of owners) and Roe v. Wade (1973, protecting abortion) used substantive due process but were horribly decided. In Dred Scott Justices protected slave owner’s property rights but never considered the rights of slaves and in Roe the Justices protected the rights of pregnant women but never considered the rights of the unborn. Natural rights should be about protecting the rights of all persons, not just a few at the expense of others. Natural rights should not contradict or conflict with other rights. Because of decisions such as Dred Scott and Roe, I opposed the substantive due process doctrine. But just because errors were made using substantive due process, it does not mean the doctrine is not sound law. After all, the equal protection clause was misinterpreted for decades after Plessy v. Ferguson (1896, separate but equal doctrine), but that does not mean the equal protection clause was not sound law. Keep in mind, substantive due process is not much different than when the Court interprets implied powers. The Court often implies federal legislative powers even when the powers are not enumerated. Therefore, the Court implicitly interprets the Constitution all the time. This can be just as dangerous as the fears substantive due process will input judge’s biases and opinions into laws. For instance, in McCulloch v. Maryland (1819) Justice Marshall wrote the power to incorporate a National Bank could be implied from the Necessary and Proper Clause to carry out the government’s taxing power. Because of this ruling the Commerce Clause has been interpreted to imply the federal government has the power to control all manufacturing and just about anything economic in nature. The Court’s history is filled with hundreds of implied power cases. Finally, it is often argued that originalism and substantive due process cannot be reconciled and this is problematic since I consider myself as an originalist interpreter of the Constitution. However, I believe that originalism and substantive due process can be reconciled through the original intent of the founders for both the Ninth Amendment and or the Privileges and Immunities clause of the Fourteenth Amendment.

Many will argue incorrectly that the Constitution and henceforth the United States is a democracy. Actually, the Constitution put forth a Republican form of government. While many aspects of the Constitution support democratic ideals but the separation of powers, checks and balances, and federalism doctrines support many non-democratic principles. For instance, the electoral college may prevent presidential candidates with the highest popular vote from winning an election. In the 2016 election this prevented California (the most populous and liberal state) from deciding the outcome of the election. Another example is how all states regardless of population have the same representation in the Senate. Furthermore, many types of bills or procedures require super majorities to pass the House and Senate (not just a democratic majority). The fact the President and the Supreme Court can void democratically passed legislation by Congress is the best example of how separation of powers and our check and balances prevent majorities from having too much power. These are a few of many examples where the design of the Constitution is to limit the power of the democratic majority. The reasons for these security measures are explained best by Madison in Federalist Paper #10 where he highlights the concern over factions (majorities or powerful special interest groups) that will use their power to silence or limit the rights of minority groups. Madison’s fears have come to fruition for a variety of reasons outlined below.

First, many Supreme Court justices practice the use of judicial restraint to uphold questionable legislation. This process “under enforces the Constitution” because Justices believe Congress and States are acting in good faith and give them the benefit of the doubt. Secondly, the Supreme Court does not enforce natural rights within the Bill of Rights equally. For example, for political and commercial free speech the Court uses different levels of scrutiny to render decisions. What’s worse, government power to control, for instance, economic rights are absolute and often conflict with individual liberties. For example, in United States v. Carolene Products (1938), the Court outlines in Footnote Four of the case decision, a few minor exceptions where the Court may restrict a federal or state law which violates the rights of individuals. But Footnote Four fails to mention hundreds of other instances where a law may violate the rights of individuals. Hence, many laws violating the rights of individuals will be held Constitutional using a rational basis test proposed in Carolene Products. In fact, the decision in Carolene Products denied the company the right to sell their “filled milk” products across state lines. Brandies briefs for the case contained false information claiming filled milk products were far less healthy than milk. In essence, the milk lobby squashed their competition with the help of Congress since filled milk was cheaper than milk. This was not only prejudicial; their evidence was proven to be wrong: Filled milk products were healthier for humans than real milk. Regardless, no lawful company should have its rights violated at the expense of another company. Thirdly, the Supreme Court upholds laws and statutes (even if they violate the rights of individuals) because they support what the majority or a powerful special interest group want (like the Carolene Products example above). Consider how majority rule and judicial restraint kept slavery alive for nearly 100 years after our independence with rulings such as upholding the Fugitive Slave Act of 1793 in Prigg v. Pennsylvania and Jones v. VanZandt even though Congress has no enumerated power to legislate over the issue of slavery (the Fugitive Slave Clause is in Article 4, which is a compact between the states, it is not an enumerated power for Congress). Moreover, majority rule and judicial restraint led to some of the worst decisions in our history: Plessy v. Ferguson (1896, separate but equal doctrine), Buck v. Bell (1927, compulsory sterilization), and Korematsu v. United States (1943, the interment of a race of people). Even more recent decisions such as Quinn v. Nevada (2003) and New Orleans v. Dukes (1976) show the effects of majority rule and the power of special interest groups. In Quinn, the Court upheld a procedure by the Nevada legislature to remove a two / thirds majority within its Constitution to pass a budget and in Dukes the Court held a New Orleans law removing all but one company for vending machines was constitutional. In Kelo v. New London (2005) the Court held the taking of private property for private reasons was Constitutional if the result is to better the community. This means nobody’s property is secure from government intrusion and confiscation if a majority in the community feel it is necessary. In Grutter v. Bollinger (1997) the Court has held raced based standards for law school admissions to be Constitutional. In other words, if a majority of persons feel that social justice in the form of reverse discrimination is justified to make up for previous racial discriminatory acts against African-Americans, then it is legal. Let me be clear, no discrimination is justified in the Constitution. Just because a majority of Americans or a special interest group hold a certain belief, it does not make it right.

Popular Soverignty, the Executive, Congress, and SCOTUS: Battle for Supremacy (Part V)

Mootness involves cases where the injury goes away over time. For example, in DeFunis v. Odegaard (1974) the Court reviewed a case involving reverse discrimination of a White student rejected from law school because of diversity policies. However, by the time the case got the Supreme Court, the student was admitted to the law school and was only a year from graduation. Therefore, the Court held the case was moot since no injury remained. In Roe v. Wade (1973) the Supreme Court decided the case even though Roe’s baby was aborted and the injury was moot. Similarly, in Firefighters v. Stotts (1984) the Court decided this case even though there was no injury. In Stotts, those firefighters who lost their jobs due to affirmative action were rehired and hence the case should have been moot. Also, in North Carolina v. Rice (1971) the Court correctly decided a moot case to expunge the criminal record of Rice. In more recent times, the Court has settled a few environmental cases over the issue of mootness. In Friends of the Earth v. Laidlaw Environmental Services (2000) the Court held an environmentalist group could sue a company for polluting the Tyger River since they can no longer use the river for recreational purposes. The defendant claimed the case was moot because they already closed the polluting plant. The Court disagreed because the defendant still owned the plant and could reopen it at any time. In Summers v. Earth Island Institute (2009) the Court held an environmentalist group had no standing against the Forest Service because the dispute was settled prior to reaching the High Court making the case moot. In these environmental cases, once again, the Court protects the federal government, but refuses to do the same for a corporation or individual.

Ripeness is the opposite of mootness. A case can be brought to the Supreme Court too soon, prior to any injury. Poe v. Ullman (1961) is probably the most famous ripeness case. Since Connecticut did not enforce a state statute that made it illegal for married couples to use contraception, it was not ripe. That changed in the Landmark case Griswold v. Connecticut in 1965. The 1947 case United Public Workers v. Mitchell involved public workers questioning the constitutionality of the Hatch Act (denied public workers from working on political campaigns). The Court held that since no injury occurred, the case was not ripe. Similarly, in Doe v. Bush (2003) the Court held a citizen had no standing to challenge to the Iraq War because a “clear” Constitutional issue was not apparent and therefore, the case lacked ripeness.

The political questions doctrine was released in Baker v. Carr (1962). Baker v. Carr was a political questions case because it dealt with state districting guidelines for elections. However, the Court incorrectly ruled on the case saying that state house and senate seats have to be divided equally and proportionally based on population. The Court held that the Constitution says the Federal Government must assure each state has a Republican form of government. However, Republican and Democratic forms of government are not the same thing. The Court ruling in Baker v Carr implemented a Democratic form of government, not a Republican one (Luther v. Borden in 1849 said establishing Republican forms of government among the states was a political question). Elections and disputes between the Executive and Congress are generally seen as political questions beyond the powers of the Court. For example, the Court has held impeachment (Nixon v. United States, 1993), presidential termination of treaties (Goldwater v. Carter, 1979), amending the Constitution (Coleman v. Miller, 1939), and apportionment of state districts (Colegrove v. Green, 1946 overruled by Baker v. Carr, 1962) were political questions. On the other hand, the legislative veto (INS v. Chadha, 1983) and the exclusion of members from Congress (Powell v. McCormick, 1969) were not political questions. Of course, the most famous political questions case was Bush v. Gore (2000). In this case, the Court incorrectly decided that the Florida recount violated the equal protection clause for using different counting methods amongst the Florida counties. However, the Court correctly held that the Florida Supreme Court introduced violated the Florida constitution by creating new election law and only the Florida legislation could introduce and implement election law. Court jurisprudence doctrines of ripeness, mootness, standing, and political questions check Supreme Court power. However, the Court does not decide these types of cases in a consistent manner and generally decide them in favor of the government over the rights of individual citizens.

In most cases regarding overturned statutes and laws, the Court would eventually overrule itself to keep up with the changing times. The Court has essentially overruled prior decisions over a hundred times in the Court’s history. In most of these cases, the Court caved to political pressure from Congress and the voting public since the corrected decisions were worse than the original ruling. Here are some of the critical overturned cases by the Court: The Legal Tender Cases following the Civil War allowed the government to print paper money despite the fact the government defaulted on the payment to individual citizens. The right of employer and employee contracts over wages and hours in Lochner v. New York (1905) was overruled in West Coast Hotel v. Parrish (1937). This allowed the Federal government to control wages and hours of most American citizens. Child labor laws were left to the States in Hammer v. Dagenhart (1918) until it was overruled in United States v. Darby (1941). The Court, Congress, and history books never consider cases where children want to work and adults need longer hours to support their families. Instead, the new precedent denies these fundamental rights to people who are willing to do the work. To make matters worse, many wage, hour, and child labor laws were discriminatory because they only targeted certain businesses and genders. Some overruled cases, on the other hand, are good decisions to protect human rights. In Minersville School District v. Gobtitis (1940) the Court held that mandatory flag salutes in schools was constitutional even if it violated someone’s religious believes. This ruling was correctly overturned just three years later in West Virginia v. Barnette (1943). In Pennsylvania v. Nelson (1956) the Court held a Pennsylvania sedition law was unconstitutional because it conflicted with the Smith Act (Congress sedition law). While Congress was debating legislation to overturn the decision to allow both state and federal sedition laws to coexist the Court overruled itself in Uphaus v. Weiman (1959). In Olmstead v. United States (1928) the Court held that wiretaps outside the premises of the accused was Constitutional since there was not any search and seizure. Chief Justice Taft handed down the opinion and opened the door for Congress to act to correct this loophole. Congress debated the issue for nearly 40 years and could never reach a compromise over the legalities of wiretapping. In Klatz v. United States (1967) the Court acted and overruled Olmstead v. United States. Another example was the overruling of Bowers v. Hardwick (1986) by Lawrence v. Texas (2003), but the Courts methodology in doing so was highly flawed and created bad law.

The bottom line is that decisions and majority opinions handed down by the Court are never final supreme laws of the land otherwise the Court would have no power to overrule precedent. The Court has no say over certain cases because of standing, mootness, ripeness, and political questions. Congress may also fail to comply with decisions by the Court or Congress may act to overturn Court rulings with new laws and statutes. The National Bank issue showed that the interpretation of the Constitution is a task completed by all three branches of government and not just the Court. All branches of government take an oath to protect and serve the Constitution and the Constitution itself says Congress shall pass no laws which violate the Constitution nor should they pass any ex post facto laws or bill of attainers. The only way for Congress and the Executive to accomplish this task is to understand and interpret the Constitution (It is not just the task of the Supreme Court and the judicial system). Sometimes Congress and the Court work well together to protect the rights of individuals. For example, in Katzenbach v. Morgan (1966) the Court upheld a federal statute as a proper interpretation of the Fourteenth Amendment to protect the voting rights of Puerto Ricans in New York.

Popular Sovereignty, the Executive, Congress, and SCOTUS: Battle for Supremacy (Part IV)

It may appear as if Congress and State laws are more responsible for upholding civil rights than the Court, but that is not entirely true. Congress passed the Fugitive Slave Act of 1793 even though it had no authority to do so. In Loving v. Virginia (1967) the Court correctly invalidated any state statutes which banned interracial marriages. In United States v. Lovett (1946) the Court held that an amendment attached to an appropriations bill in 1943 was unconstitutional because it violated the Bill of Attainer Clause. In this amendment, Congress withheld payment to certain government officials because they did not like their opinions. The Supreme Court ruling reinstated their pay, but the damage had been done because they had lost their jobs. In the famous Jencks v. United States (1957) case, the Court held that defendants were entitled to access of government files pertaining to their case. This time Congress acted with the Jencks Act to limit information a defendant may obtain (especially files with classified and national security information). Many would argue that Baker v. Carr (1964), Griswold v. Connecticut (1967), Eisenstadt v. Baird (1972), Roe v. Wade (1973), UC Berkley v. Bakke (1978), Grutter v. Bollinger (2003), Lawrence v. Texas (2003), Romer v. Evans (2007), and Obergefell v. Hodges (2015) are critical civil rights cases where the Court sided with individual rights. However, in all these cases the Court has gone over the top to invent protected groups, legalize reverse discrimination, and invent fictitious fundamental rights. The Court is trying to make up for past injustices by stomping on the Constitution. For instance, many will argue that some of the above cases violate the religious rights of tens of millions of Americans. Baker v. Carr violates the rights of rural farmers at the expense of urban dwellers. Bakke and Bollinger institute reverse discrimination practices as Constitutional. Inventing or creating rights for one at the expense of another is never the answer and it violates the equal protection clause of the Constitution.

Of course, there are cases where both Congress and the Court were complicit in violating the rights of citizens: Schenck v. United States (1917, free speech), Buck v. Bell (1927, sterilization), and Korematsu v. United States (1943, internment) to name a few of most egregious cases. In Red Lion Broadcasting Company v. FCC (1969), the Court upheld the FCC’s “Fairness Doctrine” requiring equal time for points of view on the radio violating the First Amendment rights of broadcast stations. The Court’s ruling in Miami Herald v. Tornillo (1974) contradicted the Fairness Doctrine by holding newspapers did not have to provide equal time to editorial opinions. By 1987, the FCC finally abolished the Fairness Doctrine realizing it was unconstitutional and a violation of the First Amendment. Article I, Section 9, Clause 7 states “A regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.” Up until WWII, the government had done a fairly good job of being transparent about its expenditures with the American public. However, that changed, especially for intelligence departments. For example, the Central Intelligence Act (CIA) of 1949 made unvouchered and covert funding possible. The law was challenged several times for violating the Statement and Account Clause, but in United States v. Richardson (1974), the Court held Richardson had no standing to file suit. The Court said that since Richardson did not know how the money was being spent he had no standing. But that is a Catch 22. How could Richardson know how the money is being spent if Congress refused to adhere to the Statement and Account Clause and publish how the money is being spent? The Court also ruled that Richardson faced no injury because of the CIA statute, he therefore had no standing. But again, without knowing how the money was being spent it was impossible to say if Richardson faced injury from the CIA statute. The Court side-stepped the issue and protected Congress’s violation of the Statement and Account Clause by letting them withhold information from the public.

Standing to sue is the most popular of several legal scenarios where the Court may forgo deciding a case. Other scenarios include mootness, ripeness, and political questions. For someone to have standing to sue there must be a real injury or threatened injuries from allegations. In Frothingham v. Mellon (1923) the Court denied a taxpayer citizen the right to sue the federal government over appropriations to states for maternal and infant care (the claim was it violated the Tenth Amendment). The Court reasoned since the taxpayer’s contribution to the programs were minute and infinitesimal he faced no injury. Compare Frothingham to how the Court ruled in Wickard v. Filburn in 1941 where a farmer was denied the right to grow extra wheat on his farm to feed his family. The Court said even though the amount of wheat was small, it nevertheless impacted interstate commerce. In other words, government rights in Wickard and Frothingham were more important than individual rights. In Flast v. Cohen (1968) the Court incorrectly interprets the Establishment Clause to allow citizens the right to sue the Federal government to deny public funding for religious education. Flast is an outlier, because in Valley Forge College v. Americans United (1982) the Court held citizens could not sue the Federal Government for allowing federal property to go to a Christian college. In Allen v. Wright (1984) the Court held citizens have no standing to sue a government agency based on influences that agency may have on third parties. Yet, the Court routinely interferes over state matters that may affect a third party religious cause. In FEC v. Akins (1998) the Court held citizens could sue if a violation of federal law neglected them access to information. In Akins, unlike Richardson, the Court allowed citizens to sue the FEC to obtain campaign finance information. An interesting third circuit court ruling in New Jersey Physicians v. Obama (2011) found New Jersey physicians failed to show any injury to sue the President over the Affordable Care Act (ObamaCare). However, in Obergefell v. Hodges (2015, gay marriage case), none of the plaintiffs faced an injury: they were not fined or imprisoned but the Court did not see it that way. The liberal sect of the Court was eager to make a Landmark political statement and legislate from the bench.

Popular Sovereignty, the Executive, Congress, and SCOTUS: Battle for Supremacy (Part III)

The battle over the National Bank was another interesting issue in our history. Congress and President Washington passed a law to implement a National Bank that was a controversial and bitter battle. However, the Court did not rule on its Constitutionality for nearly 20 years in McCulloch v. Maryland (1817). Chief Justice Marshall upheld the law as Constitutional by adhering to many of Alexander Hamilton’s arguments when Congress first passed the legislation 20 years earlier. But in the 1830s President Andrew Jackson vetoed the passing of legislation for a Second National Bank with a note declaring the act was unconstitutional. Jackson was completely within his right to act as he did. So, even if Congress and SCOTUS are in agreement, the Executive has some power to overcome their majorities with a veto (so long as both houses do not have a two-thirds majority to override the presidential veto). In fact, Congress used its Constitutional prerogative and failed to pass National Bank Legislation in 1811 and 1817. The National Bank issue displayed that different Constitutional interpretations by the different branches of government were acceptable and totally within their powers and prerogative to do so.

The modern Court and Executive generally battle over War Powers. The Court ruled against the Bush Administrations war on terror several times: Hamdi v. Rumsfeld (2004), Rasul v. Bush (2004), Hamdan v. Rumsfeld (2006), and Boomediene v. Bush (2008). In Hamdi the Court recognized that the Executive could detain enemy combatants but declared the prisoners had a right to due process. Similarly, in Rasul the Court held that enemy combatants could petition federal courts for a writ of habeas corpus. In Hamden, the Court declared that the Bush Administration had no right to order military tribunals. As a result, Congress passed the Military Commissions Act (MCA) in 2006 but in Boomediene the Court held that the MCA was unconstitutional because it allowed for a suspension of a writ of habeas corpus for detainees. There is little doubt that the Court in the above cases were influenced by Abu Ghraib and the use of enhanced interrogation techniques. But the Constitution holds that the president is Commander in Chief and has total war time authority, not the Courts since the President is privy of national security information that the Court would not know. Of course, this may explain why the Supreme Court had a history of honoring hundreds of egregious Executive War Time measures and powers prior to 9/11: Dozens of cases over the Espionage Act of 1917, Korematsu v. United States (internment of Japanese-Americans, 1942), Ex parte Quirin (1942), Johnson v. Eisentrager (1950), and Campbell v. Clinton (1999) to name a few. In Campbell, the Court held that Congress had no standing to sue the president for violating the War Powers Resolution by moving unilaterally into war without Congressional approval. Of course, many presidents have violated this provision of the Constitution including Harry Truman in Korea. In Quirin, the Court held that military tribunals used to convict and execute eight Germans captured in WWII was constitutional. In Eisentrager, the Court held that U.S. Courts had no jurisdiction over German prisoners of war held in Germany. From these cases, one would conclude that if Lincoln could suspend a writ of habeas corpus for U.S. citizens, Bush could suspend a writ of habeas corpus for non-citizen detainees; if Wilson could imprison American citizens for practicing their First Amendment rights, then Bush could indefinitely detain any enemy combatant for violating the rights of American citizens; if the Courts had no jurisdiction over detainees in Germany, then the Courts should have no jurisdiction over detainees in Guantanamo; if FDR could detain American citizens indefinitely without a writ of habeas corpus, then Bush could detain enemy combatants indefinitely without a writ of habeas corpus; if military tribunals were allowed for enemy detainees in WWII, then they should be allowed for terrorists 60 years later; and if Bill Clinton and Harry Truman could violate the Constitution and move unilaterally to go to war to protect national security, then Bush could move unilaterally to define the laws of war against terrorists to protect national security. These Bush terrorism cases protected the rights of non-citizen war criminals at the expense of the rights of American citizens. In fact, most War Powers disputes brought before the High Court have resulted with no decision. In cases such as Goldwater v. Carter and Crockett v. Reagan (1982) the Court said these were political questions where the Court has no jurisdiction over disputes between Congress and the Executive branches. Furthermore, the most disturbing part of the Supreme Court decisions overturning Bush anti-Terrorism policies was how the Court provided non-citizens with the rights of American citizens. Moreover, enemy combatants were provided more rights than persons serving in our military. In fact, in Solorio v. United States (1987) the Court held military court-martial trials only depend on the status of the accused being in the military. In other words, a member of the military would face military court-martial trials for offenses that occur outside the realm of the military. Remember, military courts do not have to satisfy all the procedural protections for the accused as required in federal constitutional courts afforded to enemy combatants. What’s worse, enemy combatants are not prisoners of war. Enemy combatants violate the rules of war and not only hide behind innocent civilians but commit war atrocities and crimes against their enemies including civilians. Why should enemy combatants receive a federal trial whereas United States military personnel committing acts similar to those of enemy combatants would face a court martial trial in a military tribunal?

There were many Congress and SCOTUS battles over individual liberties and civil rights. The Court in 1883 overruled the Civil Rights Cases (Civil Rights Act of 1866 and 1875). It took another 80 years for Congress to pass the Civil Rights Act of 1964. The Court would undo the harm it inflicted in 1883 in the 1954 case Brown v. School Board. In Bradwell v. Illinois (1873) the Court denied women the right to practice law, but five years later Congress passed legislation overruling the Court decision. In Mueller v. Oregon (1908) and West Coast Hotel v. Parrish (1937) the Court placed hour and wage limits only on women to remove them from the workforce. In Goldman v. Weinberger (1985) the Court held that military dress codes could not be violated even for religious purposes such as wearing a yarmulke or turban. Within a year Congress passed legislation to correct this error. Goldman v. Weinberger was a classic case of Constitutional Avoidance which is doctrine where the Court rules on cases based on statutory regulations instead of over Constitutional issues. In Goldman v. Weinberger, the Court avoided the Constitutional issue of Religious Liberty and instead ruled on the Air Force statutory dress code. Other than religious freedom Constitutional avoidance has been used in disputes over state and municipal immunity, the right to travel, and fugitives from justice. One final example of Constitutional avoidance was in Puerto Rico v. Branstad (1987). The Constitution says fugitives must be returned to the State with jurisdiction over the crime and it makes no mention of territories such as Puerto Rico. But in this case, the Court held fugitives can be returned to territories based on language in the 1793 statute which mentions territories and therefore the Court avoided the question as it applies to the Constitution. Many scholars would argue High Court decisions over criminal defendant rights were also examples of Constitutional avoidance. In Mallory v. United States (1957), Miranda v. Arizona (1966), and United State v. Wade (1967) the Court protected criminal defendants using a Congress statute “Federal Rules and Criminal Procedure” instead of the Constitution. Of course, many saw the decision in these cases as providing criminals more rights than the victims. Moving on, in Department of Human Resources of Oregon v. Smith (1990) the Court held that drug laws were Constitutional even if they violated an Indian religious ritual to use peyote. Congress passed the Religious Freedom and Restoration Act (RFRA) of 1993 to combat the Smith decision. The Court fired back by ruling against RFRA in City of Boerne v. Flores in 1997 by inventing a new test of proportionality and congruence. In General Electric Company v. Gilbert (1976) the Court held that the company’s health care plan which did not include pregnancy complications did not violate the equal protection clause. Congress would add a provision to the Title VII of the Civil Rights Act to overrule the Court’s holding in Gilbert. In some cases, rights collide and Congress must pass legislation to overcome the dispute. For instance, in Zurcher v. Stanford Daily (1978) First Amendment and Fourth Amendment rights collided. In the case the Court ruled a warrant to search the Stanford Daily newspaper to find photos they took of a protest (Police wanted to ascertain evidence as to who attacked them during the protest) was Constitutional. Congress would later pass legislation making third party searchers for evidence available through a “subpoena first” before a warrant. A subpoena would allow the party to turn over pertinent materials without a search. Similarly, in United States v. Miller (1976) the Court held a warrantless search bank records of citizens was Constitutional. However, Congress passed the Right to Financial Privacy Act of 1978 which made third party searches of financial information illegal without a warrant.

Popular Sovereignty, the Executive, Congress, and SCOTUS: Battle for Supremacy (Part II)

The battle for power and supremacy between the President, Congress, and SCOTUS has raged since our founding. Most people think that SCOTUS has the final word on a law’s Constitutionality. That is not entirely true because there are avenues that Congress can take to change a Court ruling such as amending the Constitution. For instance, five amendments to the Constitution were made to overturn prior Court decisions: The Eleventh Amendment overturned Chisholm v. Georgia (1793), the Thirteenth and Fourteenth Amendments overturned Dred Scott v. Sanford (1857), the Sixteenth Amendment overturned Pollock v. Farmers’ Loan and Trust (1895), and the Twenty-sixth Amendment overturned Oregon v. Mitchell (1970). Obviously, Congress won these battles, but Chisholm and Pollock were rightly decided (in my minority view). Chisholm was a South Carolina resident who sued Georgia to claim unpaid debts from the Revolutionary War. The Eleventh Amendment provided states sovereign immunity from lawsuits coming from citizens in other states. This changed the meaning of the Constitution from providing ultimate sovereignty to the citizens of America but instead to the state governments. Chisholm was never paid. Governments should repay their debts! The Sixteenth Amendment passed the income tax which the Court found unconstitutional in the Pollock case. This changed the balance of dual sovereignty between the States and Federal Government to one where ultimate sovereignty resided solely in the Federal Government by providing them with coercive power over the states. Therefore, the Eleventh and Sixteenth Amendments changed the sovereign hierarchy in the Constitution from: the people (ultimate) and State and Federal Government’s (equal but secondary) to: the Federal Government (ultimate), State governments (Secondary), and the people (last). These two amendments changed our government as one being derived from “We the People” to one controlled by “The Federal Government”. The Twenty-sixth Amendment made the voting age 18 universally in every state for both national and local elections. Of course, the overturning of Dred Scott could not happen fast enough. Dred Scott was the single biggest injustice in SCOTUS history.

Congress can also overrule any Dormant Commerce Clause decisions by the Court. These cases involve a Court decision over a state statute that Congress has yet to legislate using the Commerce Clause. The earliest such case was the 1852 case between Pennsylvania v. Wheeling and Belmont Bridge Company. The Court ruled the height of the Wheeling bridge across the Ohio river was too low and disrupted commerce since many commercial boats could not pass under such a low bridge. A few months after the decision Congress passed a law declaring the bridge to be of lawful height. This act did not go over well with many of the Justices who were angered and thought Congress had no right to overrule a High Court decision. Another example involves Leisy v. Hardin (1890) where the Court ruled that a State could not prohibit the sale and consumption of liquor, but again, within 6 months Congress passed legislation to overrule this case. One final example involves the United States v. South-Eastern Underwriters Association (1944) where the Court ruled that insurance sales where subject to regulation via the Commerce Clause (overruled Paul v. Virginia, 1869). Within a year, Congress passed the McCarran-Ferguson Act (1945) to overrule this decision. For this reason, many modern Justices do not like ruling on Dormant Commerce Clause cases since Congress can overrule the result.

The legislative veto is another interesting example because Congress simply decided not to comply with a Supreme Court ruling. Congress does not have veto power but in the past, they have attached this instrument to legislation providing for either one or both Houses of Congress the power to veto a particular Executive act. The Supreme Court held that the one or two house legislative veto was unconstitutional in INS v. Chadha (1983). But this has not stopped Congress from using legislative vetoes by Congressional committees to check Executive Power. If the legislative veto by either House is unconstitutional then it should intuitively follow that the legislative veto by any House committee would also be unconstitutional. So, the question that begs to be answered is why does the Executive continue to allow legislative vetoes by Congress? First, Congress will find inventive or creative ways to garner some form of a legislative veto regardless as to what the Court and the President do to stop it. Secondly, the Executive can also benefit from a similar plan. For example, Congress provided FDR, for instance, with legislative duties that were checked by a legislative veto. This obviously provided the Executive with broader legislative powers. A more egregious example of non-compliance is when President Lincoln suspended a writ of habeas corpus during the Civil War and simply ignored Chief Justice Taney’s demands in Ex parte Merryman to end the practice. Taney and the Court were damaged goods after the Dred Scott decision and SCOTUS during the Civil War era was probably at its weakest point in American history.

The Exceptions Clause (Article 3, Section 2, Clause 2) of the Constitution is another way Congress can control the power of the Court. The clause states: “In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” However, Congress has had very little success using this clause in U.S. history. In Ex parte McCardle (1869) during Civil War Reconstruction Congress passed a law which withdrew the Court’s jurisdiction from reviewing suspended writs of habeas corpus in the militarily controlled South. McCardle had been jailed without a writ of habeas corpus after being arrested for publishing articles which incited violence and insurrection. The Court dismissed the case for lack of jurisdiction upholding Congress’s authority under the Exceptions Clause. Chief Justice Chase said, “the power to make exceptions to appellate jurisdiction of this court is given by express words.” In United States v. Klein (1872) the Court correctly denied Congress the power to apply the Exceptions Clause to the Executive Branch. In Klein, Congress failed to limit the President’s pardon powers through the Exclusions Clause. There have been some unsuccessful modern attempts to apply the Exclusions Clause. Liberals in the 1980s attempted to deny appellate jurisdiction to the Court over social issues. Hence, social issues would have been decided by the state courts and those decisions could not be appealed to federal courts. This is exactly what should be happening, but the reason liberals pursued this route was solely to block any future cases against abortion which may dilute the Roe v. Wade (1973) decision. If liberals had succeeded using the Exceptions Clause for social issues then they would have protected abortion (abortion has been diluted: Scrutiny in Casey v. Planned Parenthood and funding in Webster v. Reproductive Health Services), but they would have lost opportunities over gay issues. One reason the Exceptions Clause has not been used very successfully is because Congress is limited as to what they can deny jurisdiction without violating individual, corporate, and state rights to due process of the law.

Popular Sovereignty, the Executive, Congress, and SCOTUS: Battle for Supremacy (Part I)

Most of the information in this post are from books written by law professor Louis Fisher. Although his books are insightful, I by no means agree with Fisher’s interpretation of the Constitution as being a living organism changing with the times. Before discussing the purposeful contents of this blog, I will first like to dispel why Louis Fisher’s constitutional views are misguided.

First, Fisher comes to the conclusion that an originalism interpretation of the constitution is wrong by using selective originalism. For instance, Fisher would cite Madison’s Federalist 44 where he writes the Constitution was intentionally written in general or vague terms to allow Justices flexibility to interpret the document in the future. Maybe, but in Federalist 78 Hamilton writes the Supreme Court would be the weakest branch in government. If the Supreme Court was to be a weak branch of government then why would broad interpretations of the Constitution be permissible? My point is that that Federalist 78 and 44 contradict each other. Fisher may argue that the Supreme Court may have limited powers in the Federalist Papers but Congress and the President have broad powers. But in the next federalist paper (45) Madison wrote: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation and foreign commerce. ... The powers reserved to the several States will extend to all the objects which in the ordinary course of affairs, concern the lives and liberties, and properties of the people, and the internal order, improvement and prosperity of the State.” This certainly does not sound like Madison promoted a broad interpretation of Constitutional powers for the federal government at the expense of the state governmental powers.

In another example, Fisher explains how Madison intentionally left the word “expressly” out of the Tenth Amendment (written as: “powers not delegated to the United States” instead of “powers not expressly delegated to the United States”) provided wiggle room for Chief Justice Marshall’s opinion in McCulloch v. Maryland to uphold the National Bank. But what Fisher fails to mention is that Madison was vigorously opposed to the National Bank. If Madison had hindsight that Marshall would make a play on his words he would have put the word “expressly” in the Amendment. Another example of Fisher’s selective originalism is Madison’s argument that the “Appointment Clause” can be implied to mean the President also has “removal” powers (the President can both appoint and remove candidates). Madison’s removal power theory was upheld by the Court in Myers v. United States, but not until 1926. Madison’s removal power theory makes perfect sense, but supporting some implied powers did not mean Madison approved of the implied power of Congress to create a National Bank for carrying out taxing power. In fact, Madison cautioned if it is implied a National Bank can be created for taxing power then there is no power that can be denied the federal government. Madison’s fears have come to fruition since the Federal Government continues to grow in size and stature. Appointment and removal were closely related, a National Bank and taxing were not! It was intuitively evident that either the Executive or Congress would have removal power, but it was not intuitively evident the Federal Government would have the power to incorporate any business let alone a bank. Fisher argues against originalism by asking questions such as which Framers do we select; which periods of their lives do we evaluate; what documents, letters, or diaries do we use; which is more important the Constitutional Convention or the Ratification Conventions and so on. The answer to these questions is we should consider all information available and not selective information as Fisher does by bringing forth a few of Madison’s statements.

Fisher would also argue that Justice Taney used original intent to deny citizenship to African-Americans in Dred Scott. That is not even remotely true. Taney created the concept of dual citizenship (national and state) to make his argument even though the Marshall Court had already decided that a citizen of state was a citizen of the nation (Shanks v. Dupont, 1830). Taney violated stare decisis and the intent of the framers by implying that state and national citizenship were not one in the same in Dred Scott v. Sanford. In fact, the Dred Scott case was such an anomaly, it was the first case in our history that the Court struck down an act by Congress (the Missouri Compromise). Taney’s opinion drifted from original intent so he could input his own opinion, bias, and prejudice about slavery in the decision. Dred Scott was also the first decision that used substantive due process (incorrectly) to protect the property rights (slaves) of Southerners. None of the doctrines used by Taney in Dred Scott (dual citizenship, substantive due process, and judicial activism) support originalism, but instead support a living Constitution.

Let’s consider another example of Fisher’s misguided philosophy. Fisher likes to cite the prayer case, Engel v. Vitale (1962), in most of his writings. In this case, the Court ruled that a prayer written by a public school which was recited by its students on a daily basis was unconstitutional. I certainly understand Fisher’s point that this did not remove prayer from schools as many conservatives argued. The decision merely removed prayers written and designed by a public institution. But it was still a bad decision because the Court moves in “baby steps” as noted by Fisher. Hence, Engel v. Vitale was the first step leading to decisions such as Lee v. Weisman (1992) were the Court invalidated a benign and neutral prayer at a high school graduation. In Newdow v. Elk Grove School District (2002) the Court ruled no standing or the words “under God” would have been removed from the Pledge of Allegiance based on the Weisman precedent. The Court has even removed displays of the Ten Commandments from public grounds (McCreary County v. ACLU, 2005). According to these views and the living Constitutional interpretations of the Establishment Clause (which was only meant to prevent a National Religion) the words “In God We Trust” will eventually be eliminated from our currency; government run fire departments will have to let churches burn to the ground; and pastors who commit crimes will be shielded from government prosecution. This is the result of interpreting the Constitution as a living document instead of its original intent. The assault on religion started with a ridiculous modern and very broad interpretation of the separation of church and state doctrine introduced by Hugo Black in Everson v. Board of Education in 1947 (separation of church and state does not exist in the Constitution). Separation of church and state was a statement written by a Thomas Jefferson in a courtesy letter to a Connecticut church. Remember, Jefferson was not a participant in the Constitutional Convention, nor did he write any of the Amendments in the Bill of the Rights. Sometimes a fairly benign decision is merely a stepping stone to further, more intrusive decisions. It may take 20 or 50 years, but when the Court adopts doctrines such as separation of church and state which are outside the scope of the Constitution they become harmful exercises that will result in the violation of individual liberties. Although Fisher does not believe in originalism, the outcome in Engel v. Vitale is another case of selective originalism (one Thomas Jefferson letter when there are hundreds of other documents by other Founders at the Convention who have entirely different views of the Establishment Clause).

Fisher believes historical development (excluding the founding) and even scientific or social studies have as much, if not more, impact on the law than the law itself. For instance, Fisher incorrectly theorizes that original intent would not reconcile with the Court’s ruling in Brown v. School Board to end segregation. Fisher says without social science evidence showing that black children felt more inferior to white children segregation would continue. This is not true, and I have written blogs about this topic specifically. Fisher also points to the Eighth Amendment and the “Cruel and Unusual Punishment” clause and how it has evolved with changing public views to outlaw the death penalty in many states. Yet, at the same time, Fisher dismisses the use of Natural Law to reconcile the Constitution with the Declaration of Independence. This makes little sense. Changes in perception over the death penalty may in fact be to belief in natural law principals. In fact, the Civil Rights Act of 1866, Coryell v. Corfield, and Meyer v. Nebraska have put forth many Fundamental Rights found in Natural Law as good precedent and law of America. For instance, Fisher disagrees with Justice Frankfurter’s Natural Law doctrine to strike down violations of rights that “shock the conscience” but that is exactly what is happening with changing views over the death penalty. To many, the death penalty shocks the conscience and it is therefore wrong because it violates Natural Law. Fisher is quick to dismiss many Fundamental Natural Rights such as freedom of contract, but he supports Fundamental Natural Rights such as the freedom to choose. Why is fair to say a person can choose to have an abortion but at the same time they cannot choose how many hours they work or how much wheat they can grow on their farm without government intrusion? Because Fisher believes that Congress has correctly decided economic issues: one size fits all and therefore national economic plans assume the economic conditions in New York City are the same as in Cheyenne Wyoming. This is precisely why we have states and localities.

Fisher is right the Court follows popular sovereignty or the will of the people (history). And that is precisely why history is not always the best avenue to judge cases. Some of the biggest injustices in history were decided because a majority of Americans agreed with slavery, segregation, eugenics, women inferiority, sterilization, the internment of a race, abortion and so on. History is often wrong, but the law is not, especially Natural Law and the original intent of the Constitution! Fisher’s “living Constitution” provides for decisions based on judicial activism, bias, prejudices, and opinions but not the law. The government does not create rights, rights exist before government. Government only protects rights. Now onto the purpose of this blog.

It Sure Looks Like Election Fraud

Trump was right when he said elections always seem to sway Democrats way days after the election. The day after the election Senate races where red in Montana, Arizona, and Florida. Rosendale was up by 2,000 votes in Montana but the mail-in ballots broke for Tester by a 68-32 margin yielding him a comfortable 18,000 vote margin. Essentially that is equivalent to saying all the mail-in ballots came from the largest and most liberal county in the state: Missoula. What are the chances of that happening? Remember, mail-in ballots traditionally favor Republicans whereas early voting traditionally favors Democrats. This is true, in part, because a big portion of mail-in ballots are from the military. In Arizona, the same story: McSally led Sinema by more than 17,000 votes or about 1% with 600,000 remaining mail-in ballots from Pima, Maricopa, and Pinal Counties. Before the counting of the mail-in ballots, Sinema won Pima County by about 12% and the largest county Maricopa, by a mere 0.8%. McSally won Pinal county by 14%. There were 475,000 mail-in ballots from Maricopa, 80,000 from Pima, and 32,000 from Pinal remaining to be counted. If the election day averages were maintained then McSally would hold on to a slight 7 to 8 thousand vote margin since the edge for Sinema in these three counties was about 1.5% on election day. However, after counting the first 150,000 votes Sinema gained a 9,000-vote margin (a 26,000 vote swing). Her vote margin in these three counties swelled to over 7% and the advantage in Maricopa quadrupled with only 125,000 additional votes. Sinema is winning Maricopa County mail-in ballots by better than a 58-42 advantage when the first million votes cast on election day were essential split 50/50. While the margin in Republican Pinal county remained consistent, the margins in Democratic Maricopa grew to 3% and to 14% in Pima. The voting continues 3 days after the election and judging by these results Sinema will be the winner by anywhere from 70,000 to 100,000 votes. If this holds, Sinema was right about one thing: Arizonians are crazy. Of course, everyone is aware of what is going on in Florida. It seems at least a dozen state election laws have been violated in Broward County. About 78,000 additional votes were found in Broward County and an additional 15,000 votes in Palm Beach County (and probably more to come). After election night Scott led Nelson by 57,000 votes. That lead has diminished to under 15,000 votes putting the race not only in an automatic recount range (0.5%), but an automatic hand recount range (0.25%) where canvassing boards can rule on the intent on thousands of more ballots in highly democratic districts. Of course, the vote is breaking by over a 75-25 margin in favor of the Democrats for all those newly found ballots. What makes this even more suspicious is that not one county in Florida favored Nelson by 70%. In fact, Broward county is running about 10% higher than Miami-Dade County when it usually runs about 3-5 points higher for Democratic vote. And the voting continues. One more suspicious aspect of this race: Why didn’t liberal media outlets call the race when all the votes were counted? Did they know a hundred thousand or more votes were outstanding in Democratic strongholds? This is not just a Senate problem. It has also happened in a Governor race (Connecticut) and a few House races such as in New Mexico 2 and New Jersey 4. I am waiting for some California races and Maine 2 to flip to the Democrats as well. But as Trump suggests, races ONLY flip from Republican to Democrat the day after elections and no such anomaly happens the other way. Traditionally, on election night, it is not uncommon for Republicans to garner big leads and to see that diminish as the night wears on. That is because rural vote reports much faster than urban vote. But that is not what we are talking about here. We are talking about mail-in ballots and critical races changing days after election day.

Yes, there was a Blue Wave

Republicans can spin the gaining a few seats in the Senate all they want, it does not tell the entire story. Democrats flipped over 30 house seats, 7 governor seats, and the State legislatures in six states. The Senate landscape was very favorable to the Republicans this cycle and if that had not been the case then they would have lost seats there too. And if it were not for the Democrats playing politics with the Brett Kavanaugh confirmation process by trying to ruin a good man’s reputation with smears and lies that were unsubstantiated, they may have won the Senate too. Of 5 Democrats defending Senate seats in red states who voted against Kavanaugh only Tester survived (barely, by 1 point). Even Joe Manchin, who voted for Kavanaugh, had a tighter than usual race, winning by 4 points. Why was this election cycle a blue wave? First, the Democrats flipped house seats that nobody even thought were in danger such as in red Oklahoma 5. The average number of house seats changing hands in a midterm after the election of a new president is 28 and the Dems beat that average. Second, the landscape was ripe for Governorships to change hands in states like Illinois and Michigan. But the Democrats also turned governorships in red Kansas. And it was a bittersweet win for the Democrats in Wisconsin, finally unseating Scott Walker who has been a thorn in the side of union fanatics for 8 years. Finally, the Democrats flipped dozens of State Legislature seats including gaining full control in Colorado, New York, Maine, Minnesota, New Hampshire, and Connecticut. They were even able to flip 11 seats in the Texas legislature. This means the Democrats will be better positioned when redistricting begins after the 2020 census. This is important because New York, Minnesota, Michigan, Illinois, and Pennsylvania will probably face redistricting because they will lose a House seat. And Oregon and Colorado may face redistricting for gaining a House seat. This will enable Democratic majorities to gerrymander the boundaries so only Republicans lose a seat and only Democrats gain a seat. The Democrats also picked up 4 attorney general seats which will provide states more ammunition to sue the Trump Presidency. Other than a favorable Senate landscape and the Kavanaugh debacle, the Democrats would have won the Senate. They for sure would have limited the damage done in the Senate by at least holding Florida. Florida was certainly one bright spot for the Republicans even though they lost two house seats. Also, the Republicans had a good night in Ohio, even though they lost the Senate seat, by holding the governorship and all its House toss-up seats. Do not get me wrong, this was a blue wave, but it was not a blue tsunami like the one that hit Presidents Clinton and Obama. There were substantial Democratic gains offset a bit a by a poor Senate showing. And this is probably as good as Republicans could have expected considering over 40 Republican retirements made the mid-term battle to hold the house almost impossible. If those retirements could have been halved, it may have been a different story. Trump knew the writing was on the wall for holding the House so he correctly focused his attention on the Senate and he was able to protect that part of his coalition. This country is more divided than ever before and the anti-Trump rage has been at a fever pitch for two years and it led to record mid-term turnout numbers. And despite this, the Republicans were able to manage to keep the generic ballot to 7 points in favor of the Democrats. This sounds like a lot but it is not much different than what Democrats favor Republicans nationally going into the election. Many polls were suggesting a double-digit win in the generic ballot and this would have been a Tsunami. The pressure will be on Democrats. If they decide to open dozens of investigations into Trump and try to impeach him, it will surely work to the Republicans advantage in 2020. Especially if Democrats decide not to work with Trump on things both sides may have a vested interest. But I do not see Pelosi (or whomever is in charge) working with Trump to give him any credit for legislative wins. Even so, all is not lost for Trump since he has a friendlier Senate majority to continue to appoint conservative federal judges. Here is a bold prediction for what to expect from the next two years: Polarization will be worse and politics will be uglier than ever: Especially with a presidential election on the horizon and the never-ending Mueller investigation.

Is there a Blue Wave (11/5/18)

In the past I generated models based on polling data to predict election outcomes. However, models can only be as accurate as the polling data I am trying something different this year. I am only going to look at early voting numbers. A few states provide some demographic information on their early voting totals such as party affiliation, ethnicity, and gender. By comparing early voting numbers with prior years we may be able to obtain some good information. For instance, in 2016 the early voting numbers in Nevada and North Carolina told me the average polling numbers in these states was wrong. And that ended up being correct. The average of polls in Nevada gave Trump a slight lead of between 1 and 2 points and Clinton a 2 to 3 point advantage in North Carolina. However, voting trends from 2012 to 2016 showed higher Democratic turn out in Nevada and higher Republican turn out in North Carolina. The data was correct and the polls were wrong. Why? Because the sample size is enormous in states that allow early voting. In 2016 here are some averages for national early voting:

Democrats = +7.5 (% of Democrats - % of Republicans)

Female = +14.1 (% of Females - % of Males)

White = +39.1 (% of Whites - % of Blacks - % of Hispanics)

In 2018 the averages look like:

Democrats = +5.8 (% of Democrats - % of Republicans)

Female = +9.5 (% of Females - % of Males)

White = +37.5 (% of Whites - % of Blacks - % of Hispanics)

Here are a few State trends that have key races from 2016 to 2018:

Arizona +1.5 R

Florida +0.9 R

Colorado +1.1 D

Georgia +3 B, +2.6 M

North Carolina +2.4 D, +2.3 W, +2.7 M

Nevada +2.2 R

West Virginia +5.2 R

For example, North Carolina means there is 2.4% more Democrat turnout, 2.3% more white turnout, and 2.7% more male turnout in 2018 than 2016. Higher Democrat turnout is obviously good for Democrats, but a higher white and male turnout is more favorable to Republicans. Overall, since blacks vote in higher percentage for the Democratic candidate and males lean towards Republicans I see this state as a toss up because there is a significant higher Democrat turnout, but North Carolina has a high Democrat populous.

Conclusion: Things are trending very fast towards the Democrats. Ideology turnout is down to 1.7% in favor of Republicans, 1.6% in favor of a higher minority turnout, and the gender turnout is down to 4.6% in favor of Male turnout. This data does not suggest a blue wave. It suggests modest pickups for the Democrats. I suspect at this time things favor Republicans in Arizona, Florida, West Virginia, and Nevada whereas Democrats have the edge in Colorado, Iowa, and Georgia, and North Carolina is a tossup. I see Democrats having a +5 to +7 advantage and that is not much different from the past several major election cycles. Of course it comes down to election day and who shows up to vote.

Is there a Blue Wave? (11/1/18)

In the past I generated models based on polling data to predict election outcomes. However, models can only be as accurate as the polling data I am trying something different this year. I am only going to look at early voting numbers. A few states provide some demographic information on their early voting totals such as party affiliation, ethnicity, and gender. By comparing early voting numbers with prior years we may be able to obtain some good information. For instance, in 2016 the early voting numbers in Nevada and North Carolina told me the average polling numbers in these states was wrong. And that ended up being correct. The average of polls in Nevada gave Trump a slight lead of between 1 and 2 points and Clinton a 2 to 3 point advantage in North Carolina. However, voting trends from 2012 to 2016 showed higher Democratic turn out in Nevada and higher Republican turn out in North Carolina. The data was correct and the polls were wrong. Why? Because the sample size is enormous in states that allow early voting. In 2016 here are some averages for national early voting:

Democrats = +7.5 (% of Democrats - % of Republicans)

Female = +14.1 (% of Females - % of Males)

White = +39.1 (% of Whites - % of Blacks - % of Hispanics)

In 2018 the averages look like:

Democrats = +4.9 (% of Democrats - % of Republicans)

Female = +9.2 (% of Females - % of Males)

White = +38.7 (% of Whites - % of Blacks - % of Hispanics)

Here are a few State trends that have key races from 2016 to 2018:

Arizona +2.7 R

Florida +3.1 R

Colorado +0.7 D

Georgia +2.3 B, +3.3 M

North Carolina +2.8 D, +3.5 W, +3.3 M

Nevada +3.5 R

West Virginia +5.4 R

For example, North Carolina means there is 2.9% more Democrat turnout, 5.2% more white turnout, and 4.7% more male turnout in 2018 than 2016. Higher Democrat turnout is obviously good for Democrats, but a higher white and male turnout is more favorable to Republicans. Overall, since blacks vote in higher percentage for the Democratic candidate and males lean towards Republicans I give a slight advantage to Republicans even though there is a significant higher Democrat turnout, but North Carolina has a high Democrat populous.

Conclusion: Things are trending very fast towards the Democrats. Ideology turnout is down to 2.6%, 0.4% in favor of a higher minority turnout, and the gender turnout is down to 4.9% in Male turnout. Every data point moved the democrats way except Nevada. I suspect at this time things favor Republicans in Arizona, Florida, and Nevada whereas Democrats have the edge in Colorado, Georgia, and North Carolina.

Is there a Blue Wave? 10/29/18

In the past I generated models based on polling data to predict election outcomes. However, models can only be as accurate as the polling data I am trying something different this year. I am only going to look at early voting numbers. A few states provide some demographic information on their early voting totals such as party affiliation, ethnicity, and gender. By comparing early voting numbers with prior years we may be able to obtain some good information. For instance, in 2016 the early voting numbers in Nevada and North Carolina told me the average polling numbers in these states was wrong. And that ended up being correct. The average of polls in Nevada gave Trump a slight lead of between 1 and 2 points and Clinton a 2 to 3 point advantage in North Carolina. However, voting trends from 2012 to 2016 showed higher Democratic turn out in Nevada and higher Republican turn out in North Carolina. The data was correct and the polls were wrong. Why? Because the sample size is enormous in states that allow early voting. In 2016 here are some averages for national early voting:

Democrats = +7.5 (% of Democrats - % of Republicans)

Female = +14.1 (% of Females - % of Males)

White = +39.1 (% of Whites - % of Blacks - % of Hispanics)

In 2018 the averages look like:

Democrats = +4.1 (% of Democrats - % of Republicans)

Female = +8 (% of Females - % of Males)

White = +41.1 (% of Whites - % of Blacks - % of Hispanics)

Here are a few State trends that have key races from 2016 to 2018:

Arizona +4.2 R

Florida +3.5 R

Colorado +0.4 D

Georgia +0.2 W, +4.8 M

North Carolina +2.9 D, +5.2 W, +4.7 M

Nevada +2.9 R

West Virginia +5.6 R

For example, North Carolina means there is 2.9% more Democrat turnout, 5.2% more white turnout, and 4.7% more male turnout in 2018 than 2016. Higher Democrat turnout is obviously good for Democrats, but a higher white and male turnout is more favorable to Republicans. Overall, since blacks vote in higher percentage for the Democratic candidate and males lean towards Republicans I give a slight advantage to Republicans even though there is a significant higher Democrat turnout, but North Carolina has a high Democrat populous.

Conclusion: So far things good for Republicans they are up 3.4% in turnout, 2% in White turnout, and 6.1% in Male turnout. However, these numbers have been trending back towards the Democrats this week.

Is there a Blue Wave? (10/26/18)

In the past I generated models based on polling data to predict election outcomes. However, models can only be as accurate as the polling data I am trying something different this year. I am only going to look at early voting numbers. A few states provide some demographic information on their early voting totals such as party affiliation, ethnicity, and gender. By comparing early voting numbers with prior years we may be able to obtain some good information. For instance, in 2016 the early voting numbers in Nevada and North Carolina told me the average polling numbers in these states was wrong. And that ended up being correct. The average of polls in Nevada gave Trump a slight lead of between 1 and 2 points and Clinton a 2 to 3 point advantage in North Carolina. However, voting trends from 2012 to 2016 showed higher Democratic turn out in Nevada and higher Republican turn out in North Carolina. The data was correct and the polls were wrong. Why? Because the sample size is enormous in states that allow early voting. In 2016 here are some averages for national early voting:

Democrats = +7.5 (% of Democrats - % of Republicans)

Female = +14.1 (% of Females - % of Males)

White = +39.1 (% of Whites - % of Blacks - % of Hispanics)

In 2018 the averages look like:

Democrats = +2.8 (% of Democrats - % of Republicans)

Female = +7.6 (% of Females - % of Males)

White = +41.8 (% of Whites - % of Blacks - % of Hispanics)

Here are a few State trends that have key races from 2016 to 2018:

Arizona +5 R

Florida +4.4 R

Colorado +0.3 R

Georgia +0.4 W, +5.4 M

North Carolina +3 D, +6 W, +4.9 M

Nevada +3 R

West Virginia +4.9 D

For example, North Carolina means there is 3% more Democrat turnout, 6% more white turnout, and 4.9% more male turnout in 2018 than 2016. Higher Democrat turnout is obviously good for Democrats, but a higher white and male turnout is more favorable to Republicans. Overall, since blacks vote in higher percentage for the Democratic candidate and males lean towards Republicans I give a slight advantage to Republicans even though there is a significant higher Democrat turnout, but North Carolina has a high Democrat populous.

Conclusion: So far things good for Republicans they are up 4.7% in turnout, 2.7% in White turnout, and 6.5% in Male turnout. However, these numbers have been trending back towards the Democrats this week.

Is There a Blue Wave? (11/23/18)

In the past I generated models based on polling data to predict election outcomes. However, models can only be as accurate as the polling data I am trying something different this year. I am only going to look at early voting numbers. A few states provide some demographic information on their early voting totals such as party affiliation, ethnicity, and gender. By comparing early voting numbers with prior years we may be able to obtain some good information. For instance, in 2016 the early voting numbers in Nevada and North Carolina told me the average polling numbers in these states was wrong. And that ended up being correct. The average of polls in Nevada gave Trump a slight lead of between 1 and 2 points and Clinton a 2 to 3 point advantage in North Carolina. However, voting trends from 2012 to 2016 showed higher Democratic turn out in Nevada and higher Republican turn out in North Carolina. The data was correct and the polls were wrong. Why? Because the sample size is enormous in states that allow early voting. In 2016 here are some averages for national early voting:

Democrats = +7.5 (% of Democrats - % of Republicans)

Female = +14.1 (% of Females - % of Males)

White = +39.1 (% of Whites - % of Blacks - % of Hispanics)

In 2018 the averages look like:

Democrats = +2.4 (% of Democrats - % of Republicans)

Female = +7.5 (% of Females - % of Males)

White = +41.6 (% of Whites - % of Blacks - % of Hispanics)

Here are a few State trends that have key races from 2016 to 2018:

Arizona +5.9 R

Florida +6.2 R

Colorado +0.7 R

Georgia +0.3 W, +6.6 M

North Carolina +4.6 d, +7 W, +6 M

Nevada +2.1 R

West Virginia +1.7 D

For example, North Carolina means there is 4.6 % more Democrat turnout, 7% more white turnout, and 6% more male turnout in 2018 than 2016. Higher Democrat turnout is obviously good for Democrats, but a higher white and male turnout is more favorable to Republicans. Overall, since blacks vote in higher percentage for the Democratic candidate and males lean towards Republicans I give a slight advantage to Republicans even though there is a significant higher Democrat turnout, but North Carolina has a high Democrat populous.

Conclusion: So far things good for Republicans they are up 5% in turnout, 2% in White turnout, and 6.5% in Male turnout. However, these numbers have been trending back towards the Democrats this week.

Oliver Wendell Holmes was no Protector of Free Speech (Part III)

In fact, in Fiske v. Kansas, the Court overturned the conviction of Fiske for merely belonging to a socialist political party. Fiske did not pose any risk or threaten violence. Hence, Whitney would not have been convicted if she only belonged to the communist party, but instead she conspired to use violence to release of “political prisoners”. In Burns v. United States, the Court upheld the conviction of Burns. The case was similar to Whitney because it used the same California statute. It was a federal case because the offense occurred in Yosemite National Park. Like Whitney, there was proof that Burns taught and advocated the use of violence and sabotage against the local and state governments. Holmes joined the majority opinion in this case and Brandies was the lone dissenter. In all these cases (other than Fiske), the only person on the Court who held inconsistent views on free speech was Holmes. While a majority of the Justices upheld convictions and Brandies would dissent, Holmes would consistently change his mind even over similar cases.

In Milwaukee Leader v. United States, the Court held that the United States Post Office could deny or charge an inflated rate for newspaper delivery if the substance in the newspaper violated the Espionage Act. Holmes’s dissent is puzzling because it conflicts and contradicts his earlier ruling in McAuliffe. One would conclude if a “police officer who talked politics could be excluded from public employment.” then it would follow a “seditious newspapers could be excluded from the mail”. In United States v. Schwimmer, the Court held that Congress could deny citizenship to an immigrant who refused to take an oath to fight and defend the country. The Constitution is clear and only Congress has the power of naturalization. The Court really has no jurisdiction over this case. Once again, however, Holmes and Brandies dissented even though in a past decision Holmes said: “It is admitted that sovereign states have inherent power to deport aliens, and seemingly that Congress is not deprived of this power in the Constitution of the United States.” Both Milwaukee Leader and Schwimmer violate the views that Holmes expressed in Davis where he said the government could prohibit any public speech. Why have Holmes’s views changed? Why was he contradicting earlier decisions and doctrines? Although he did not side with Brandies on all cases he did on most. I believe Holmes was influenced by Brandies and became his puppet on the Court, especially over free speech cases. Of course, Holmes believes the meaning of the Constitution changes over time. Holmes said, “we do not realize how large a part of our law is open to reconsideration up a slight change in the habit of the public mind.” Furthermore, according to Holmes judges have a “duty of weighing considerations of social advantage.” Moreover, Holmes wrote “The provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic living institutions transplanted from English soil.” Therefore, Holmes’s point of view on free speech may be merely evolving based on public opinion or because of certain economic conditions. This is ridiculous, but Holmes was a ridiculously poor Justice. In fact, modern interpretation of the First Amendment much more closely resembles the founders’ intent, it does not resemble the conjured-up scheme of doctrines and philosophies of Holmes’s imagination that failed to provide adequate free speech protection. I would argue that the words of the Constitution are just as precise as any mathematical formula and any alteration from that formula is merely activism that supplants the Constitution with a Justices prejudices and philosophies as law of the land.

Freedom of speech and press would have minimal value if Holmes’s doctrines were practiced by modern courts. Speech would be restricted more than it would be free. Even in cases where Holmes sided in favor of free speech, the majority used his doctrines to side against free speech. And on many cases where Holmes dissented in favor of free speech he would join the words and doctrines written by Brandies (Holmes was silent). Brandies was much more consistent and committed to free speech and his doctrines live on today (especially his Whitney dissent). Holmes was not committed to free speech and his interpretations where hard to understand because he was very inconsistent in his rulings. Holmes’s free speech doctrines (clear and present danger) died out over 50 years ago. Holmes’s deference to state legislation was indeed more important to his doctrine of judicial restraint than protecting any natural rights including free speech of individual citizens. Some may argue that Holmes’s free-speech doctrine was way ahead of its time in protecting free speech. This too is not true. Many judges and legal scholars had doctrines which protected speech far more than Holmes (other than Louis Brandies): Learned Hand, Zechariah Chafee Jr., and Ernst Fruend to name a few that Holmes corresponded with over the issue of free speech. Fruend’s view on free speech is more of our modern interpretation: “No matter what the speaker’s intent was, speech alone was not sufficient basis for an attempt. An actual harm had to result.”

Oliver Wendell Holmes was no Protector of Free Speech (Part II)

In Fox v. Washington Holmes found that a book written by Fox (“The Nude and the Prude”) was harmful speech that violated the First Amendment because it incited citizens to break the law (indecent exposure). This precedent, if enforced, would find any modern book, movie, TV Show, or video game as harmful speech.

In Schenck v. United States Holmes found that Schenck violated the Espionage Act of 1917. In this case, since Schenck was found guilty of a conspiracy to obstruct enlistment in the armed services for WWI there was no need to find a proximity to harm, yet Holmes cites his “clear and present danger” doctrine in his decision which should have had no bearing on the case. Schenck proved that Holmes was not only wrong about free-speech, but he was confused and could not even follow his own doctrines. Frohwerk v. United States was a similar case because it too involved a conspiracy and that in and of itself forced the Court to uphold Frohwerk’s conviction. However, the cases were vastly different: Schenck was a high-ranking officer in his Socialist Party while Frohwerk was simply a poor working man carrying out the orders of his employers; Schenck targeted drafted Americans but Frohwerk did not attempt to reach Americans subject to the draft; evidence against Schenck involved both speech and a high volume of non-verbal speech (Pamphlets) but evidence against Frohwerk consisted of only a small circulation of non-verbal speech. Frohwerk was a pawn and took the fall for his bosses. Frohwerk had no harmful intent nor did he have any proximity to harm, but since it was a conspiracy case Holmes felt he had no choice but to uphold his doctrine and theory of legal liability. The Frohwerk decision was proof that the Supreme Court was providing the United States government increased war-time powers.

In Sugarman v. United States the Court held that it did not have jurisdiction over the case. However, according to Holmes’s theory of legal liability he would have concluded Sugarman was rightfully convicted for violating the Espionage Act. Anything that hindered the United States war effort against Germany was said to be a violation of the Espionage Act. Sugarman was arrested for giving a speech condemning the draft at a Socialism Party meeting in which draft eligible men were present. Similarly, in Debs v. United States, the case and outcome were very close to that of the Sugarman case. In Debs, Holmes declared a clear and present danger of intent to obstruct the war effort. Debs, like Sugarman, was a socialist who condemned the war effort in many of his public speeches. But I find it hard to believe that Debs and Sugarman (who both represented very unpopular political parties) could convince but a few young men to commit a crime and dodge the draft. The only “clear and present danger” were the thoughts going Holmes’s brain.

Holmes would change his views on free speech in Abrams v. United States and Gitlow v. New York. If Holmes had followed his previous theory of legal liability doctrine he would have upheld convictions in both cases. In his dissent Holmes found Abrams innocent of violating the Espionage Act. However, the majority used Holmes’s “clear and present danger” doctrine to uphold the conviction but for some reason Holmes went against his own doctrine. Even if the defense argument was factual that they did not want to hinder the war effort with Germany but merely wanted to enhance United States foreign policy with Russia, the group sought to incite labor strikes which would hinder the war effort. This case was probably more egregious than Schenck or Debs, but Holmes changed his views. There was truly a clear and present danger, maybe even more so than in Schenck or earlier cases decided by Holmes differently. In Gitlow, Holmes did not find advocacy of criminal anarchy was harmful (but any effort to affect the military draft was harmful). In fact, Holmes generally practiced “restraint” and almost always sided with police power (state legislation), but not in this case. Abrams and Gitlow are generally cited by liberals who revere Holmes and his defense of free speech. But Holmes’s “clear and present danger” doctrine upheld the convictions of both Abrams and Gitlow. The damage had been done, Holmes’s doctrines would be used for decades to restrict free-speech until it was abandoned by the Warren Court in the 1960s. But what changed in Abrams and Gitlow? Everything points to how Holmes should have decided these cases differently: Holmes had a contempt for natural rights, especially free speech and he saw no relationship between the law and morality (positivism); Holmes’s principle to conform to the powers of state government (judicial restraint); Holmes’s value of speech: the more valuable the speech the more protection and the less valuable the speech less protection; Holmes’s view that law is created to coerce citizens into compliance (judicial restraint); Holmes’s view of siding with majority factions (popular sovereignty and judicial restraint); Holmes’s positive view of war and its necessity; and Holmes’s theory of legal liability all pointed towards restricting the speech of Abrams and Gitlow. One argument was that Abrams and Gitlow were not popular cases with the mainstream media and the public and therefore there was not as much hysteria over the threat of communism compared to persons trying to hinder the war effort against Germany (Gitlow was after the war). Gitlow was a major case for another reason: It applied the First Amendment to the States. It is believed that Holmes supported applying the First Amendment to the States to create a landmark ruling and appease his superego. While the majority agreed that the First Amendment could apply to the States, Holmes thought by ruling against the legislative statute would make it clear the First Amendment did apply to the States. Remember, very rarely did Holmes rule against state legislative police power, so there must be some reason. Others would like to believe Holmes had a change of heart and all the sudden believed that free-speech and natural rights needed more protection. I would buy that argument if Holmes was consistent with all his free-speech cases after Abrams, but that was not the case.

In Pierce v. United States, the Court upheld convictions for violations of the Espionage Act. This case, like Schneck, dealt with a conspiracy and the distribution of an anti-war leaflet. Despite the similarities in the cases Holmes changed his view and joined Louis Brandeis dissent. In Schaefer v. United States, the Court upheld the conviction using similar logic as it used in Pierce. Schaefer dealt with a German language newspaper which changed articles and editorials it reprinted from other news sources. Once again, Holmes joined Brandies dissent even though this case had a lower threshold of proof since it was a conspiracy like Piece, Schneck, and Debs. Yet, in another similar case, Gilbert v. Minnesota, Holmes concurred with upholding the conviction of Gilbert who gave speeches that were anti-American. In Gilbert, Brandies was the lone dissenter. What made this case so different than Pierce or Schaefer? First, it was a state and not a federal case. Holmes’s first inclination was to practice judicial restraint and uphold state legislation and rulings regardless of their consequences on individual rights even if the decision conflicts with his earlier precedent. Secondly, Holmes objected because Gilbert’s speeches were said to instigate the crowd and make them unruly. Gilbert precedent would deem any modern conservative political speech unconstitutional because they always instigate, upset, incite, and anger liberals. Gilbert was proof that Brandies saw that free speech could only be restricted by the federal government during war times, but Holmes saw that free speech could be restricted by both the federal government and police power in times of war and peace. These philosophies were further enforced in United States v. Burleson where both Brandies and Holmes wrote separate dissents. Brandies dissent points to a difference between war time and peace time speech and Holmes’s dissent merely points to the fact that one man, the Post Office General, would have too much power. This, once again, violates Holmes’s position is Davis. If the federal government could deny any public speech, then why couldn’t a Post Office General deny seditious speech as outlined by a federal law. Since only Congress could declare war, Brandies felt only federal law could impinge free speech and States had no power to impinge speech. Holmes disagreed and his deference to state legislation provided state legislations broad power to control free speech. In Whitney v. California, the Court upheld the conviction of Whitney because membership in a group that advocated violence regardless of harm was sufficient grounds to convict any subject for conspiracy. Although Holmes and Brandies concurred with the conviction they dissented saying that the California statute was too broad because it could merely target political groups. Brandies Whitney dissent (Holmes joined) is seen today as the modern doctrine for free speech: not “bad tendencies” or a “clear and present danger” used by Holmes. Brandies brought forth the idea that free speech and individual liberty are closely related. Brandies also introduced the idea that speech had to be inciteful to abridge the First Amendment. Brandies said “The fact that free speech is likely to result in some violence or in destruction of private property is not enough to justify suppression. There must be the probability of serious injury to the state.” Obviously Brandies free speech philosophies are much more protective than those of Holmes.

Oliver Wendell Holmes was no Protector of Free Speech (Part I)

In past publications, I have uncovered the evils of Oliver Wendell Holmes. Holmes was a bigot and racist as his decisions in Mueller v. Oregon (gender discrimination), Baily v. Alabama (racial discrimination), and Buck v. Bell (mentally challenged discrimination) illustrate. Holmes’s Lochner dissent was revered in history. Yet, in Bailey Holmes contradicts his views about contracts in Lochner to uphold a flagrantly racial discriminatory law. Holmes was on the wrong side of history in all these cases, even in Lochner. Liberal courts have used the substantive due process techniques introduced in Lochner to uphold abortion and gay rights. In fact, Holmes saw the Fourteenth Amendment as “perverted” and therefore, discrimination was never considered by Holmes in terms of equal protection under the law. Consider the case Interstate Consolidated Railroad Company v. Massachusetts where Holmes held that a law forcing the railroad company to charge students half price was constitutional. Holmes said the law could be upheld by calling it an education tax. However, this law was discriminatory because it was a tax against only railroad companies. A tax should be consistent and target all businesses equally. This decision also conflicted with Holmes’s decision in Pennsylvania Coal Company v. Mahon. In this case Holmes held that a Pennsylvania law was unconstitutional because it was a taking of private property without just compensation. A tax is also an unjust taking of private property when it targets just one business sector. Holmes had a “political attitude” towards the law because he believed that the law should follow the philosophies and ideas of popular sovereignty. Holmes felt that lawyers also needed to be experts at economics. This makes little sense, but it may help explain many of his decisions in Mueller, Lochner, Mahon, and Interstate Consolidate Railroad Company. Holmes felt his opinions favored what was economically best for America, not what was legally best. And since a majority of Americans had subpar views of women in the workplace, minorities, and the mentally challenged, Holmes felt it was the will of the people to discriminate against them. It was okay to discriminate so long as the power of the majority felt it was okay. Holmes’s view on speech was not much different. Holmes would defer to popular legislation to restrict speech more times than not.

One of the great attributes accredited to Supreme Court Justice Oliver Wendell Holmes was that of being a protector and champion of free speech. This is far from the truth. In most free speech cases Holmes followed his theory of legal liability which includes distinguishing between harmful acts, attempts, and abuses of privilege. Harmful acts were particularly easy to identify. If a speaker’s act was harmful then the speaker was liable for their actions regardless of any intent or foresight. This followed the doctrine of “bad tendencies” utilized by the Court to determine what speech is protected and which speech is outside constitutional protection. For instance, Holmes would classify someone yelling fire in a crowded movie theatre as an example of harmful speech because it could incite a melee (I doubt this famous Holmes example would win any support in the modern Court). Many harmful speaking acts are privileged such as criticizing public officials and rights to association. However, that privilege may be rescinded if an unlawful conspiracy is charged against a group of association. In cases of conspiracy defendants are guilty if unlawful intent is proven regardless of any proximity of harm (a clear and present danger). In individual cases where no conspiracy exists, both unlawful intent and proximity of harm must be proven. An attempt is when liability may be imposed on non-harmful acts but only if the speaker intended harm and there was a proximity of harm. An attempt is the hardest to act of liability to prove. For example, in one case Holmes wrote “If a defendant had gone no further than to buy a box of matches for the purpose [to start a fire], he would not have been liable”, but if the defendant went to the place he intended to start a fire and changed his mind he would then be guilty of attempted arson. By holding free speech to same standard as his theory of legal liability, Holmes decreased free speech rights and by no means expanded or protected free speech rights.

McAuliffe v. New Bedford was a case decided by Holmes while he sat on the Massachusetts Supreme Court. The case involved a statute where a policeman whose political free speech was restricted while he held a public service job. Holmes declared “The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.” This statement cannot be more wrong because all people have a right to pursue any lawful profession. Similarly, in Laurel Hill Cemetery v. San Francisco Holmes said a law that denied cemeteries within the city limits was Constitutional. Once again, Holmes sided against the right of the individual to pursue a lawful occupation at the expense of discriminatory state or local legislation. In Holmes’s view the burden of proof was on individuals to prove state laws were not needed instead of on state legislators to prove why the laws were essential especially those that violated the rights of an individual. And the only reason a state or municipality needs to pass a law, in Holmes view, was because it was what a majority wanted. In Holmes view, there was no need to show a compelling state interest for laws that violate the rights of individuals. Holmes ignores the Constitution and its view to protect the natural rights among citizens equally without bias to majorities (this is how practices like slavery start). In Holmes view judges should uphold dumb, stupid, harmful, or discriminatory laws if that is what the majority wants. This type of thought is just dangerous. One person’s rights are not more important than another person’s rights merely because one belongs to a majority. But this is precisely what Holmes decides in Laurel Hill and McAuliffe. Remember, Holmes said, “The whole collectivist tendency seems to be toward underrating or forgetting the safeguards in the bill of rights….” In Commonwealth v. Davis (also decided while on Massachusetts Supreme Court), Holmes’s opinion declared that a State has the right to forbid any public speaking in the streets and in parks. Of course, these early rulings by Holmes were perverse and have absolutely no bearing in modern society. If Holmes had his way, the government would employ the speech police to keep Americans in line.

In Hanson v. Globe Newspaper Company Holmes found the newspaper libel when it erred in writing critically about H.P.H Hanson as H.P. Hanson. The real H.P. Hanson filed suit. Even though there was no intent to harm H.P. Hanson, false statements of fact about Hanson made the newspaper libel in Holmes’s view. Modern courts would never come to the same conclusion. In this instance, the courts would protect the newspaper from a suit since it was an accident and could be corrected by a simple statement clearing the plaintiffs name. It is true, that false statements of fact have no First Amendment protection under modern jurisprudence. However, in this case, the statements may have been false, but they had a lawful intent (not unlawful intent). The paper simply made a mistake. If every mistake made a newspaper liable to a suit then there would be no Freedom of the Press. In Patterson v. Colorado Holmes found an ex-Senator’s editorial about the Colorado Supreme Court was in contempt. This case was about whether the government could enforce prior restraint on free-speech. Even though Patterson’s speech was truthful, his editorial mentioned both current and possibly future cases before the Colorado Supreme Court. Hence, Holmes found Patterson was guilty obstructing justice and found him in contempt. However, the truthful claims by Patterson revealed potential corruption and this should never be a violation of free speech. Why would any whistleblower ever come forward if they could be found in contempt while their truthful statements are ignored? This is another bad decision because it fails to protect one of the most important forms of speech: truthful speech which identifies a crime or the violation of a person’s rights. However, in Near v. Minnesota, the Court found prior restraint of free speech unconstitutional even if the speech was untruthful or had malicious intent. Future letters indicate that even Holmes admitted he erred in Patterson. In fact, Holmes’s change of heart in his opinion for Toledo Newspaper Company v. United States was proof that Holmes knew he was wrong in Patterson. By Brandenburg v. Ohio in 1969 (only literal incitement fell outside of First Amendment protection) all of Holmes’s free speech doctrines would be abandoned. Even during the Red Scare of McCarthyism during the 1950s free speech was not restricted to the degree of Holmes’s free speech doctrines.