Why Originalism Matters (Part III)

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

The Presumption and Ninth Amendment Example:

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

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

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

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

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

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

Why Originalism Matters (Part II)

Consent and Majorities:

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

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

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

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

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

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

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

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

Why Originalism Matters (Part I)

I have written about originalism before, but there are sufficient reasons to clarify why we need judges who interpret the meaning of the text of the Constitution. This is referred to as textual meaning originalism which is vastly different than intent originalism. All evidence indicates the Founders wanted the Constitution to be interpreted through its textual meaning and not the intent of the Founders. Paul Brest and H. Jefferson Powell wrote articles pointing out the defects of originalism. According to Brest “The act of translation required involves the counterfactual and imaginary act of projecting the adopters’ concepts and attitudes into a future they probably could not envision.” Powell asserts that original intent was not an appropriate strategy and the Founding Fathers did not agree with it. Brest and Powell make valid points, but they are rejecting intent originalism, not textual originalism. After all, there is nothing “imaginary” about the meaning of the Constitution. Madison said “What a metamorphosis would be produced if the code of law if all its ancient phraseology were to be taken in its modern sense.” In other words, the textual meaning of the Constitution at its founding is the correct way to interpret the document. In Marbury v. Madison, decided in 1803, Chief Justice John Marshall argues for both originalism and judicial review in his “principles and theory of government”. Although this decision is widely accepted today for its judicial review precedent, judicial scholars neglect its originalism precedent. In fact, most people incorrectly interpret the Marbury decision by declaring the Judicial Branch as being more powerful than the other branches of government. That is not correct, all branches of government are on equal footing. In fact, the Federalist Papers insist the Judicial Branch was to be the weakest branch of government, but the power of judicial review was the equalizing factor. The Marbury decision provided the Supreme Court the power to null and void unconstitutional Congressional laws (judicial review), but it never ceded “judicial superiority” to mandate Congress act on the orders of the Court. This misconception of “judicial superiority” can be found in many Supreme Court decisions where Congress is directed to carry out the Court’s mandates, regulations, and legislation.

Other arguments against originalism include the Founders are dead and cannot rule from the grave and the Founders were only white males and are not representative of the American population. Moreover, many Founding Fathers were slaveholders and therefore were both racist and sexist. But keep in mind the Constitution binds the action of government and not the action of citizens. The Founders were not writing a Constitution to protect the rights of white males, but to protect all citizens from government intrusion (slavery is not mentioned in the document). Besides, the Supremacy Clause of the Constitution, which has been used extensively by both the right and left, says “This Constitution shall be supreme law of the land.” Furthermore, it proclaims that “judges in every state shall be bound thereby.” In other words, the Constitution declares judges interpret the Constitution in its original form. Therefore, any interpretation other than originalism is unconstitutional, especially for any judge that has used the Supremacy Clause.

Both Brest and Powell argue that the text of the Constitution is “open ended”. If that were true then the original meaning of the Constitution would be sufficient to justify any liberal law instead of inventing jurisprudence to validate the law. Some clauses such as the Ninth Amendment or the Privileges and Immunities clause of the Fourteenth Amendment are certainly “open-ended” and would allow for the discretion of Justices to add Fundamental Rights (Yes, I am changing my view of the Ninth Amendment from some previous writings). On the other hand, the Commerce and Necessary and Proper Clauses are not open-ended, but that did not stop the Court from turning these static clauses into elastic or dynamic clauses to cover anything Congress desires or imagines. To find proof of this disobedience one would only have to evaluate cases such as Wickard v. Filburn or Raich v. Gonzales to see how the Court used its imagination to broadly apply the Commerce Clause to restrict the rights of American citizens. Further examples including Berman v Parker and Kelo v. New London illustrate how the Court used its imagination to broadly apply the Takings Clause to restrict the rights of American citizens. These are bad decisions that the Constitution’s original text was written to prevent, but unfortunately, that is not how elitist Justices accomplish their political ends. What’s worse, the precedent of such decisions leaves one to wonder are there any limits to federal government power? Kelo makes any government takings for private reasons possible and Wickard and Raich make regulations against any personal backyard garden possible. Finally, nobody understood the function and structure of government better in American history than our Founding Fathers. Acceptance of the Founding Fathers older theories is much easier to tolerate than those ideas of brain dead modern political and judicial leaders such as Obama, Bush, Trump, Ginsberg, Kennedy, Scalia, Sotomayor, Schumer, Kagan, Stevens, Alito, Pelosi, McConnell, Ryan, and others. Only Justice Thomas interprets the Constitution correctly.

The Court Randomly Changes Methodologies to Meet Political Ends

In recent writings I have talked about the issues associated with elevating Fundamental Rights as well as the Court using personal opinions to draw up methodologies to produce the favored political result. The 2016 decision between Whole Women’s Health v. Hellerstendt is a good example of such a case. In this case, the majority held that a Texas statute aimed at increasing the safety of women having abortions was unconstitutional because it created “an undue burden on abortion access”. The Court struck down every provision and failed to sever provisions that were constitutional (a common Court practice) especially for laws written specifically with a severability clause. In essence the Court found provisions that patients “be treated with respect, consideration, and dignity” and patients should not be given any “misleading” information, and facility fire safety codes must be up to date are examples of provisions of the law that were found unconstitutional. Why? Because the majority held determining the constitutionality of all clauses in the statute would be too burdensome. Justice Breyer’s opinion is so bad it contains the following statement “determined wrongdoers, already ignoring existing statutes and safety measures, are unlikely to be convinced to adopt safe practices by a new overlay of regulations.” This statement basically rules out the need for any regulations of any kind. Why place gun regulations on felons if they will refuse to abide by such regulations? This is a dangerous statement. Justice Ginsberg concurring opinion states: “When a State severely limits access to safe and legal procedures, women in desperate circumstance may resort to unlicensed rogue practitioners.” This “may” or “may not” be the case because these facts were not in evidence. Justice Ginsberg is merely injecting personal opinion. This should not happen in any case, let alone in a case being heard in the highest court of land.

What is important to focus on in this case is Justice Thomas’s dissent because he points to all that is wrong with the Court’s methodology in evaluating complicated cases such as this one on abortion. First, Thomas points out that the Court “invented” the “undue burden” standard for evaluating abortion cases in Planned Parenthood v. Casey (1992). However, this case rewrites the “undue burden” standard developed in Casey in several ways. For example, the Court in Whole Women’s Health “balances benefits with burdens” which it did not do in Casey. Another new wrinkle in the Whole Women’s Health decision is for the first time the Court fails to leave medical science regulations up to the legislators who confer with medical professionals. Finally, states have always been given the benefit of the doubt if it acts in a rational way then they are not imposing an undue burden. Thomas points out that “The majorities undue-burden test looks far less like our Casey precedent and far more like the strict-scrutiny standard that Casey rejected.” In other words, the majority had to find a way to strike down this law and had to change their own precedent and rules to do so (Breyer wrote the majority opinion and heard both cases). This decision is dangerous for many reasons. First, “the majority reappoints this Court as ‘the country’s ex-officio medical board with power to approve and disapprove medical and operative practices and standards throughout the United States.” Hence, the ever growing power of the monopolized government gets bigger and more powerful with this decision.

Secondly, Thomas points out that many standards created by the Court over the decades are becoming increasingly “meaningless formalism”. Some of the standards used by the Court are strict scrutiny, intermediate scrutiny, closest scrutiny, rational basis, and undue burden to name a few. Thomas says “As the Court applies whatever standard it likes to any given case, nothing but empty words separates our constitutional decisions from judicial fiat.” Moreover, the Court uses these standards randomly even though “The Constitution does not prescribe tiers of scrutiny.” The “Court has a tendency to relax purportedly higher standards of review for less-preferred rights.” By incorrectly elevating abortion as a Fundamental Right in Roe v. Wade (1973) it has force the Court to transform “the tiers of scrutiny into an unworkable morass of special exceptions and arbitrary applications.” Thomas concludes by saying “Unless the Court abides by one set of rules to adjudicate constitutional rights, it will continue reducing constitutional law to policy-driven value judgments until the last shreds of its legitimacy disappear.”

Finally, the Court "Ordinary [does not allow] plaintiffs filing suits to vindicate constitutional rights of others." No women had filed suit against the new abortion safety regulations.

Bravo to Thomas, he is the only Justice interpreting the Constitution as it should be: through its text. Without the text the document has no limits. Interpreting the Constitution differently is just opinion, policy making, and making up the law as you go. The Court’s ad-hoc way of deciding cases needs to go, it is unfair to the people and the states.

Is the Second Amendment a Second Class Right?

I have said it a hundred of times: all Fundamental Rights need to be treated the same and judged with the same standard of scrutiny. One Fundamental Right that the Court wrongly treats different from other Fundamental Rights is the right bear and keep arms for self-defense (Second Amendment).

Since Heller v. D.C. (2008) and McDonald v. Chicago (2010), the Court has declined to hear numerous Second Amendment cases dealing with anything from safety and storage regulations to assault weapons. This changed last year when the Court decided Caetano v. Massachusetts without hearing oral arguments. The lower court decision was an egregious judicial error that the Court stepped in to correct matters. In this ruling Jamie Caetano was convicted because she used a “stun gun” to defend herself against an abusive boyfriend (she never used the stun gun, only threatened to use it). The lower courts obviously misapplied Heller. In fact, the lower courts told Ms. Caetano that she would not have been charged if she used a handgun. Justice Alito said “Courts should not be in the business of demanding citizens use more force for self-defense then they are comfortable wielding.” A “stun gun” was ruled unconstitutional because it was both “dangerous” and “modern”. A “stun gun” should be a type of weapon promoted for self-defense because it is non-lethal and therefore much less dangerous than any gun. To say (modern) electronic stun guns are “exempt from the Second Amendment protection” is equivalent to saying “electronic communications are exempt from the First Amendment, or electronic imaging devices are exempt from the Fourth Amendment.” Massachusetts is a liberal state and they blatantly violated the rights of Caetano merely because they had a low opinion of the Second Amendment.

Also in 2016 in Voisine v. United States the Court held a Maine statute which denied persons convicted of misdemeanor domestic violence from possessing a firearm. Maine’s statute prohibits “intentionally, knowingly, or recklessly causing bodily injury or offensive physical contact to another person.” In Heller, the Court held regulations prohibiting felons and mentally ill persons from owning a firearm would be permissible. The problem with the Maine statute is it very broad and would restrict the rights of many persons who merely paid a fine or penalty for their misdemeanor crime. A mother slapping the face of her 18 year old son or a person who got in a fender bender because they were texting while driving would all be denied their right to self-defense. One can understand trying to keep guns out of the hands of violent persons, but these are not assaults, they are misdemeanor offenses. Since the law is so broad some readings of law may be Constitutional and others may be Unconstitutional. The “doctrine of Constitutional avoidance commands courts, when faced with two plausible constructions of a statute – one constitutional and the other unconstitutional – to choose the constitutional reading.”

For the first time in over a decade Justice Thomas broke his silence in oral arguments: “Can you give me another area where a misdemeanor violation suspends a constitutional right? He got no acceptable answer. He then asked “Let’s say that a publisher is reckless and violates a law against the use of children in ads which is misdemeanor violation. Could you suspend that publisher’s right to ever publish again?” Of course not. But liberal interpretations of the Second Amendment can prohibit a traffic ticket violator from their right to keep and bear arms for self-defense. Some of the misdemeanor infractions covered by the Maine statute are so minor that a citizen may qualify for a jury trial to prove their innocence. Any violation of someone’s rights is a travesty and an injustice that cannot be tolerated. But it is worse when the monopolized government is the one violating those rights. Oddly, only Justice Sotomayor joined Thomas’s dissent.

When Moral and Social Justice Unite

Moral and Social justice are often seen as polar opposites similar to conservative and liberal philosophies. However, these philosophies do unite from time to time. For example, both moral and social justice have common themes over crime, but they tend to differ over retribution. There are even times when the two dangerous philosophies unite in Supreme Court cases. One such case is Taylor v. United States (2016) where the Court held that the Hobbs Act which “makes it a crime for a person to affect commerce or to attempt to do so by robbery” was constitutional. Taylor was convicted of robbing two drug dealers in Virginia. Taylor did not get away with any money or marijuana, but instead stole a few household items.

The Commerce Clause has been a heaven for social justice. The Court has used the Commerce Clause to regulate everything that is economic including hourly wages, maximum hourly work days and weeks, as well as to allow workers to unionize. The Commerce Clause has even been misapplied to uphold the Civil Rights Act of 1964 (should have used the Fourteenth Amendment). Liberals believe the reach of the Commerce Clause goes beyond the regulation of economic activities to include the regulation of government mandates, gun laws at schools, and crime against women. So it should come as no surprise all four liberal justices sided with the majority opinion and the federal government’s power grab.

But why would three Conservative justices side with the liberals in this case (if Scalia were alive he would have sided with the majority too)? Only Justice Thomas dissented. Well, the answer is simple, the moralistic code or philosophy of conservativism is to side with 1. Harsher penalties for crime and 2. Always rule against drug crimes.

Taylor v. United States shows the pettiness of both the Liberal and Conservative sects of the Court. It also illustrates the discriminatory flaws in both the moral and social justice aspects of our monopolized government because rulings violate the rights of some individuals but not others. In his majority opinion Justice Alito based his ruling on the Court’s precedent in Raich v. Gonzalez (2005), which was also a bad decision (Liberals and Conservative united over social and moral justice). Alito wrote: “the activity at issue, the sale of marijuana, is unquestionably an economic activity”. However this point neglects modern Commerce Clause principles in United States v. Lopez; United States v. Morrison, and United States v. Bond which implies: “the Constitution requires a distinction between what is truly national and what is truly local.” The Constitution’s Commerce Clause (or any clause) does not “allow Congress to punish robbery.” Allowing Congress to have national police power “would subvert the basic principles of federalism and dual sovereignty”. What is more troubling is Alito statement: “proof that the defendant’s conduct in and of itself affected or threatened commerce is not needed”. That is a remarkable statement because as Thomas points out in his dissent that this “effectively relieves the government of it central burden in a criminal case – the burden to prove every element beyond a reasonable doubt.” This means “today’s decisions weakens longstanding protections for criminal defendants.” Moreover, Alito says “Our holding today is limited to cases in which the defendant targets drug dealers for the purpose of stealing drugs or drug proceeds.” However, the Court’s “reasoning allows for unbounded regulations.” If Taylor can be convicted for violating a federal law that states a person cannot “delay, obstruct, or affect” commerce without any burden of proof, what is to stop the government from treating any local robbery with the same methodology. Worse yet, the Court may apply the law differently depending on what was stolen. This is the definition of discrimination.

Since any robbery is economic in nature, what is to stop the government from applying the Hobbs Act to any theft? And think about the implications if the Court treats “drug robberies” different from other types of robberies? And if all this is not bad enough think about the fact that Taylor never stole any drugs or drug money, but was convicted based on what he intended to steal. What would happen if everyone was arrested for intending to break the law? Wait, it gets worse, the government did not have any burden of proof to show that Taylor broke the law or intended to break the law. This is “guilty until proven innocent” and more innocent people will be jailed if the standard of proof switches to the defendant. This is the power of what happens when moral and social justice unite in one ruling. This is not the only time the Court used the commerce clause to impose stricter standards on a specific type of crime. In 1971 in Perez v. United States, the Court applied federal jurisdiction to the illegal activity of loan sharks. This is scary stuff. Remember, Taylor and Perez would be punished under state statutes and laws, they would not get off without punishment. This case is important because it provides the federal government more police power at the expense of the States. This means the federal government monopoly continues to garner more strength and when that happens nobody’s rights are safe since criminal protections are becoming extinct.