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Posts Tagged ‘constitution’

Here’s how a “living constitution” works

Posted by Richard on February 17, 2016

When it comes to protecting the rights of individuals, it doesn’t. Case in point: Great Britain. The British don’t have a written constitution, with fixed language and a Bill of Rights that explicitly denies the government the power to infringe on individual rights. Instead, they have what’s called an “uncodified constitution,” and its primary purpose seems to be to protect the “rights” of the nation’s legislators:

After the Glorious Revolution in 1688, the bedrock of the legislative British constitution has been described as the doctrine of parliamentary sovereignty, according to which the statutes passed by Parliament are the UK’s supreme and final source of law.[3] It follows that Parliament can change the constitution simply by passing new Acts of Parliament.

This is the American leftists’ wet dream.

The English Bill of Rights of 1689 is merely a statute enacted by Parliament, and its protection of free expression extends only to speech within Parliament. Thus Britons express thoughts that are disapproved of by their government at their peril:

British police have promised not to tolerate any speech that could cause offence on social media regarding Syrian migrants, after arresting a man for Facebook comments made about recent arrivals on his small Scottish Island.

The tiny Isle of Bute in the Firth of Clyde, which had a total population of just 6,498 in 2011, is expected to take in around 1,000 Syrian migrants, with 12 families already arriving since December last year (picture above).

However, commenting on the comparatively huge and sudden influx of Muslim immigrants online just became a very risky business for local residents.

Police have confirmed they have arrested a 41-year-old local man under the Communications Act, after receiving a report of a supposedly “offensive” comment made on Facebook regarding the migrants.

A police spokesman was unequivocal, that any harsh criticism of the Muslim influx would not be “tolerated”. …

Don’t feel too smugly superior to the Brits. Suppression of free speech is the norm on about half of American college campuses, and has been actively promoted by the Obama administration.

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R.I.P., Antonin Scalia. R.I.P., Liberty?

Posted by Richard on February 13, 2016

For lovers of liberty, 2016 had already become a consequential and concerning year. With the sudden and unexpected death of Justice Scalia, it has become ten-fold so. We were already looking with dismay at an election season in which an avowed socialist is threatening to best the more leftist and vicious of the Clintons, while she seeks desperately to demonstrate that she’s just as “progressive” as he is. In which a flawed contingent of GOP candidates is led by a bombastic, anti-intellectual demagogue with no particular political philosophy or principles.

If President Obama is able to appoint yet another Kagan or Sotomayor, the First and Second Amendments are likely to become dead letters. Property rights, already seriously weakened, could be much further eroded. The Supreme Court’s stay of the EPA’s “Clean Power Plan” just this week will be merely a temporary delay in that lawless agency’s “complete restructuring of the energy sector.” Obama’s preference for “positive rights” (the unlimited power of government to bestow goods, services, and preferential treatment on some at the expense of others) over “negative rights” (limits on the power of government) will likely be enshrined for a generation. The left’s “living Constitution” (infinitely malleable by five collectivist justices) will rule this nation.

If you feel confident the the McConnell-led Senate Republicans will prevent that, I respectfully suggest that you haven’t been paying attention for the past seven years.

I fear for my country. I fear for our Constitution. I fear for our liberties.

Costa Rica looks nice.

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Article V convention: savior or disaster?

Posted by Richard on January 10, 2016

Article V of the Constitution provides for two means of amending the Constitution: Congress can propose amendments (two-thirds of each house concurring), the process with which we’re all familiar, or a convention of the states can propose amendments (two-thirds of the states concurring). In both cases, the approved amendments must be ratified by three-fourths of the state legislatures or by conventions in three-fourths of the states.

The convention of states idea has been kicking around for some time among people concerned about the inability to constrain an out-of-control, overreaching federal government. It seems to have picked up steam after the 2013 publication of Mark Levin’s The Liberty Amendments. A number of different groups are working toward some kind of Article V convention; some want to limit it to a single amendment (e.g., balanced budget or term limits), while others, like Levin, want multiple amendments around a single subject (limiting the power and jurisdiction of the federal government). Texas Governor Greg Abbott made news this past week by jumping aboard. His proposal seems at first glance to mirror Levin’s proposals and the Convention of States Project (which Levin has endorsed).

One of the most influential supporters is Rob Natelson, a senior fellow at Denver’s wonderful Independence Institute, which hosts the Article V Information Center, an invaluable resource on the subject.

For an overview of the key players and an assessment of the movement as of November 2015, see David Guldenschuh’s Heartland Institute policy brief (PDF, 40 pages).

The Article V idea has drawn opposition from a number of people and groups  on the right who claim that Congress would have too much power to define the rules and control the process, and that there would be no way to limit the scope of such a convention to what the proponents want. They worry that the Second Amendment could be rewritten and other grievous harm to what’s left of our freedoms could be done. Chief among them are Phyllis Schlafly’s Eagle Forum and the John Birch Society.

Also opposed is Colorado’s Dudley Brown, who is rallying opposition through his two gun-rights organizations, Rocky Mountain Gun Owners (RMGO) and the National Association for Gun Rights (NAGR). (Interestingly, the Guldenschuh PDF I linked to above is on the NAGR website, even though Guldenschuh is an Article V proponent.)

One leftist group is pushing for an Article V convention specifically to prohibit corporate campaign contributions, overturning Citizens United. But contrary to the claims of some Article V opponents, George Soros is not supporting the Article V movement, and in fact, Soros-funded groups (including Common Cause) have denounced the idea.

The Convention of States website has a ton of information countering the critics and their concerns about a “runaway convention,” etc., which I’ve only begun to explore.

Based on what I know now, I’m cautiously inclined to support an Article V convention of the states, either for a single amendment (as a test of the process) or for a carefully crafted single subject as proposed by the Convention of States Project. The arguments for it seem more persuasive than the arguments against it. And I’m much more inclined to believe the folks at the Independence Institute than Schlafly and the Birchers. How about you?

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The power to destroy

Posted by Richard on July 3, 2012

Howard Rich at Investor’s Business Daily:

Nearly two centuries ago Daniel Webster stood before the U.S. Supreme Court on behalf of James McCulloch, head of the Baltimore branch of the Second Bank of the United States.

At issue were two basic questions: Did the federal government have the authority to establish a bank? And did states have the authority to tax that bank (and by extension the federal government)?

“An unlimited power to tax involves, necessarily, the power to destroy,” Webster famously argued in opposition to the latter question. Chief Justice John Marshall agreed, parroting Webster’s words almost verbatim in his ruling. “That the power to tax involves the power to destroy … (is) not to be denied,” Marshall wrote.

Yet this “undeniable” premise — first invoked in 1819 on behalf of an onerous expansion of federal authority — has been explicitly rebuked 193 years later in support of an even more onerous expansion of federal authority. In fact the destructive power of taxation has just been extended far beyond a mere list of items subject to duties, imports or levies — it can now actually compel participation in the private sector.

More than at any other time in American history, the power to tax has indeed become the power to destroy — our economy, our liberty and perhaps one day even our lives. Chief Justice John Roberts’ refusal to rein in this destructive force will have immediate and lasting reverberations.


Apologists for Roberts have argued that his opinion cleverly constrained the Commerce Clause — as if he didn’t have the option of making the same finding as part of a majority striking down Obamacare in its entirety, and as if there were no dispute regarding Roberts’ ruling (see numerous July 1-3 posts on the Volokh Conspiracy about whether Roberts’ discussion of the Commerce Clause is a holding or a dictum).

Even if the ruling modestly restricts the federal government’s powers under the Commerce or Necessary and Proper Clause, so what? The power to tax is the power to destroy. And Roberts has given them permission to impose punitive taxes for failing to obey their dictates. Limited government, my ass.

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The power to tax and broccoli

Posted by Richard on June 28, 2012

During oral arguments on Obamacare, Justice Alito asked if the federal government can force us to buy broccoli. In today’s ruling, Chief Justice Roberts has answered that question: No, but it can force us to pay a penalty “tax” for failing to buy broccoli.

So, although the Commerce Clause doesn’t quite give the federal government unlimited power, it effectively has unlimited power anyway.

So says what passes for a conservative justice.

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Obamacare upheld 5-4, Roberts joins statists

Posted by Richard on June 28, 2012

Chief Justice John Roberts wrote the majority opinion, basically arguing, “We can’t stretch the Commerce Clause far enough to justify the individual mandate, but the penalty is sort of like a tax, so let’s just call it a tax. And everyone knows that the government can do whatever it wants with regard to taxes. Oh, but Congress said it’s not  a tax … so I guess it’s not really a tax, and the Anti-Injunction Act doesn’t apply.”

Based on such nonsense, the entire monstrosity survives. Because of this unprincipled “mainstream conservative” weasel. Disgusting.

Scalia, Kennedy, Thomas, and Alito joined in a dissenting opinion, and Thomas also filed his own dissenting opinion. I look forward to reading that one.

Bill Wilson of Americans for Limited Government:

The U.S. Constitution died today.  The underlying hope and belief that our nation’s founding document protected individual freedoms from an ever encroaching government is a thing of the past based upon this ruling.  It is inconceivable how these nine lifetime appointed jurists could have decided to keep a law that is such a blatant intrusion into each of our lives, but the result of their decision is that individuals can no longer rely on the federal government power being limited by anything other than the political pressure their individual elected representatives feel.  Ultimately, the Supreme Court has opted out of the battle to retain our freedoms, and has thrown in entirely with those who advocated for unlimited government authority.  It is truly a sad day for our nation.


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Court kills Amazon Tax

Posted by Richard on April 3, 2012

Woohoo! Colorado’s so-called Amazon tax has been ruled unconstitutional by the U. S. District Court in Denver:

In 2010, the Democrats in Colorado, in violation of the state Taxpayers Bill of Rights, passed a variety of tax increases known as the Dirty Dozen.  The state’s highly politicized Supreme Court gave the tax increases a pass around TABOR’s requirement for a citizen vote, but the federal courts are frequently a different matter, and so it has proved with one of the measures, the so-called, “Amazon Tax.”  That tax applied the state sales tax to sales by Amazon affiliates in the state, on the dubious proposition that the presence of a person who either owns a website (which could be hosted anywhere in the world) or who sells web ads constitutes a significant physical presence in the state.

Now, a federal court has decided that the tax violates the US Constitution:

On Friday, the federal court in Denver declared the 2.9 percent tax on purchases unconstitutional on the ground it was tilted unfairly against out-of-state retailers, and that it put an undue burden on retailers to either collect the tax owed by consumers or report consumer purchases to the state.

Judge Robert Blackburn’s ruling noted the legal language of the tax didn’t distinguish between in-state and out-of-state businesses, but the practical effect of the tax did.

“I conclude that the veil provided by the words … is too thin to support the conclusion that the Act and the Regulations regulate in-state and out-of-state retailers even-handedly,” Blackburn wrote.

The court applied what is known as the “negative Commerce Clause,” the notion that if regulation of interstate commerce is explicitly delegated to the Federal government, then it cannot be exercised by state governments. …

After the tax was enacted, Amazon simply terminated all affiliate relationships with Coloradans, so the socialist scum who enacted it gained no revenue as a result.

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Doubling down on autocratic rule

Posted by Richard on January 5, 2012

Mere hours after making his first non-recess “recess appointment,” President Obama made three more, this time to the National Labor Relations Board. Even Sen. John McCain called it an “absolute abuse of power” and characterized the two radical pro-union appointees, Richard Griffin and Sharon Block, as “far, far left” people. When Sen. “Reach Across the Aisle” McCain calls someone “far, far left,” you can be pretty sure they’re really out there. For more about their background, check out this report (PDF) by Americans for Limited Government, which also exposed the President’s “we can’t wait for Congress to act” claim as totally bogus:

“These nominees were only submitted to the Senate by Obama on December 15,” ALG President Bill Wilson noted. “There has not even been time to hold a hearing in the Senate, let alone vote on them, and yet Obama wants to claim his extraconstitutional ‘recess’ appointments were based on some sort of extraordinary delay.”

Industry groups affected by NLRB regulations are expected to sue in federal court to overturn the appointments and any new regulations the Board issues.

“Obama and Reid have thrown out the ‘advice and consent’ clause of the Constitution so that union organizers can hang posters on their boss’ door during a union election,” Wilson joked, concluding, “And to what end? When all is said and done, the courts will nullify these appointments and their acts, meanwhile Obama will be remembered as the recess president who accomplished nothing because he was too busy violating the Constitution.”

“When all is said and done” may be a long way off. Right now, not enough is being said or done. In this matter, as in others, the Obama administration is attempting to rule by decree, a la Hugo Chavez. Where is the outrage? Why don’t I hear full-throated denunciations instead of just McCain/McConnell-style soft-spoken disapprovals?

Cartoon by William Warren, ALG

Warren Toon from Used with permission. Click to visit source.

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Best line yet about Libya War

Posted by Richard on March 22, 2011

Last Saturday, I wondered when the left would declare President Obama a war criminal and call for his impeachment. The wait wasn't actually too long, but so far it's only the far left fringe, like Ralph Nader and Dennis Kucinich.

Cindy Sheehan made a statement, but nobody noticed. As Tommy De Seno observed, the MSM once granted Sheehan "absolute moral authority" regarding matters of war and endlessly covered her every utterance and camp-out, but today they're just not interested in her point of view:

It’s not like Cindy Sheehan hasn’t said anything yet.  Upon passage of the UN resolution for the Libyan no-fly zone, Cindy’s statement was posted at a website called “United Progressives.”  No offense to whomever they are, but I doubt they are saved in enough people’s “favorites” list to be called “main-stream media.”

While refusing to mention President Obama by name, Cindy at least continued her eloquent anti-war soliloquy by saying our leaders are “criminally insane.”  Newsworthy?

I’d give only long-shot odds that Cindy Sheehan becomes a camera magnet for mainstream media over Libya. Maybe there's just not enough time in today's newscasts to fit in a story about Cindy Sheehan, in between the ceaseless parade of liberal pundits booked to call Obama's bombing of Libya a humanitarian effort.

The best line I've heard regarding the war in Libya came from Rush Limbaugh

"Imagine how upset the left will be when Khadafy's weapons of mass destruction are not found."

That one really cracked me up. 🙂

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Constitution? What constitution?

Posted by Richard on March 20, 2011

In October 2002, President Bush asked for and received a joint resolution of Congress, the Authorization for the Use of Military Force Against Iraq (Public Law No. 107-243), authorizing military action against Iraq. Libertarians like Rep. Ron Paul argued that it wasn't technically a declaration of war, which is what the Constitution calls for Congress to do (even though similarly-worded resolutions were considered sufficient to pass Constitutional muster going all the way back to the early days of the Republic). But he asked Congress before attacking, and Congress approved overwhelmingly (297-133 in the House, 77-33 in the Senate).

Today, our current Commander in Chief launched a massive attack on Libya. Without a joint resolution of Congress. Apparently, without even considering whether he needed permission from Congress. Apparently, President Obama believes that the permission of the United Nations is all he needs.

Leftist critics insist that the Iraq War violated international law. Set aside the validity of that claim for a moment. The President of the United States doesn't take an oath to uphold international law, he takes an oath to uphold the Constitution of the United States. Obama went to war without so much as a gesture toward abiding by the Constitutional provision reserving the war-making power to Congress. 

Paging Cyndi Sheehan! Paging Code Pink! Paging International A.N.S.W.E.R! When can we expect to see massive anti-war demonstrations in the nation's capital and cities throughout the land? When can we expect a new tent city to be erected? When will we see the "Behead Obama" signs, the cries of "war criminal," and the calls for impeachment?

I'm not holding my breath. 

UPDATE: Bless her heart, my representative has voiced concern

DENVER – U.S. Rep. Diana DeGette (CO-1) tonight issued the following statement regarding President Barack Obama's decision to begin military action in Libya without securing Congressional authority.

"I am concerned by President Obama's decision to commit U.S. forces in Libya without involving Congress. This action may require substantial U.S. resources. While there is no question that Gaddafi's regime is brutalizing the people of Libya, launching military action against another nation requires Congress be fully informed so we can exercise our Constitutional authority.

"I therefore call on Speaker Boehner to call an emergency session, returning Members to Washington, so the President may address a joint session of Congress and be given the opportunity to make the case for war."

DeGette seems to believe the Constitution merely calls for Congress to be "involved" or "informed" (I doubt that she believed that from 2002-2008). But at least she's saying, "Hey, what about Congress?"

UPDATE 2: Instapundit called it the blog comment of the day. I'd rank it much higher. It may be the single most perfect comment I've seen posted anywhere in a very long time. Go right now and read "What I like about Obama"!

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Liberty Legal Foundation on Florida court ruling

Posted by Richard on January 29, 2011

I gave two cheers when the Virginia district court ruled that Obamacare's individual mandate is unconstitutional. I gave three cheers when the Florida district court ruled that, since the Democrats chose not to include a severability clause in that legislative monstrosity, the entire thing is unconstitutional. The Liberty Legal Foundation's Van Irion was pleased, too, but put the ruling into perspective (via email; emphasis in original): 

I was actually pretty disappointed with the Virginia Court when it found the individual mandate unconstitutional, but then found that it could sever the individual mandate from the rest of the bill. Now at least one Federal court has corrected that mistake.

I’m also disappointed that both Courts explicitly stated that Congress has the power to regulate health care and insurance. My immediate reaction was that both judges must be reading some other Constitution. The Constitution I have does not list “regulation of health care” within the enumerated powers granted to Congress. Then I remember, they’re following Wickard v. Filburn.

You see, District Courts work under the assumption that they must follow existing precedent from higher courts and rarely even consult the Constitution. Both the Virginia and Florida Courts were simply applying Wickard v. Filburn when they re-affirmed Congress’ general authority to regulate healthcare. This is why our Obamacare Class Action lawsuit must go all the way to the Supreme Court to get Wickard v. Filburn overturned.

Our Obamacare Class Action lawsuit is STILL unique because it is the only lawsuit against Obamacare that begins and ends with one argument: the commerce clause does not grant unlimited power to Congress, therefore Wickard v. Filburn must be overturned. I may sound like a broken record, but this message needs to be repeated until everyone in America understands it. For the first 150 years after the Constitution was ratified, all courts agreed that the Commerce Clause gave Congress only the authority to prevent individual states from implementing burdensome regulations on interstate commerce. Then the FDR-packed Supreme Court destroyed our Constitutional Republic by re-interpreting the commerce clause, eliminating all limits on Congressional authority.

The goal of all of the State-filed lawsuits is to get rid of Obamacare any way they can. That is an admirable goal, but it falls short of the more important goal. Liberty Legal Foundation’s goal is NOT simply to overturn Obamacare. Our goal is to restore Constitutional limits on Congressional authority so that when the political winds shift again, Congress can’t repeat a similar massive power grab.

Obamacare is simply the latest and worst example of Congressional abuse of authority. So, it became our tool to overturn Wickard v. Filburn. For 150 years the courts got the Commerce Clause right. For the past 68 years they got it wrong based solely on the political motivations of a handful of judges. There is more historical precedent supporting our arguments than supporting Wickard. This is a fight we can win! And success means Obamacare will be overturned AND our Constitutional Republic will be restored.

I urge you to join me as a plaintiff in the Obamacare Class Action lawsuit. All you need to do is go to Liberty Legal Foundation and sign on with a minimum donation of $1 (if you can afford more, please give more).

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Join the Obamacare Class Action lawsuit

Posted by Richard on July 31, 2010

Tennessee's attorney general refused to join the lawsuit filed by 22 states against the Patient Protection and Affordable Care Act (PPACA), a.k.a., Obamacare, a.k.a. the government takeover of health care. So East Tennessean Van Irion, a constitutional attorney admitted to practice before the U.S. Supreme Court, decided to file suit himself and invited other Tennesseans to join him in a class action. Soon, people from all over the country were asking to join, and Irion opened up the class to all Americans.

Read about the Obamacare Class Action and, if you like the idea, sign on. Irion is handling the case pro bono and covering the court costs, so it needn't cost you anything. But he does accept voluntary donations, and $10 is suggested. I love the idea (although I acknowledge it's a bit quixotic), because it aims at the heart of the problem: 

The Obamacare Class Action (OCA) is a Federal lawsuit challenging the Constitutionality of the entire Patient Protection and Affordable Care Act (PPACA) on the basis that Congress does not have the authority under Article 1, Section 8 of the U.S. Constitution to regulate the health care industry and is specifically barred from doing so by the 10th Amendment.

The OCA is unique among the many lawsuits filed against the PPACA. The 22 States that have joined lawsuits challenging the constitutionality of PPACA direct their challenges at the individual mandate to purchase health insurance and the unequal treatment of different groups. While we agree that these aspects of the PPACA are unconstitutional, and we encourage the States challenges, the OCA challenges the PPACA in its entirety.

… The OCA lawsuit seeks to re-establish the original meaning of the enumerated powers and of the 10th Amendment by re-establishing that the Commerce Clause was intended to allow Congress only the authority to prevent one state from creating trade barriers to doing business with another state.

The chances of success in the courts are slim. Nevertheless, I think the case is extremely worthwhile. Irion already has over 25,000 plaintiffs. If that number rises into six figures and the case draws significant public attention, it can be a wonderful educational opportunity.

Van Irion is also a candidate for Congress in Tennessee's heavily Republican 3rd District. He appears to be a long-shot in the crowded Republican primary for the open seat (incumbent Zach Wamp is running for Governor). But I wish this self-described "Constitutionalist" well.

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Four black men and a gun

Posted by Richard on July 24, 2010

Marcus Cole is a professor of law at Stanford University. He recently posted an homage to four men and a gun that brought a tear to my eye. It begins thus:

As an American, I owe a tremendous debt of gratitude to many, many people who have risked and given their lives to defend our liberty. But as I reflect on the recent Supreme Court decision in McDonald v. City of Chicago, I thought I should take a moment to mention four Americans who have made a relatively uncelebrated contribution to the freedom I cherish and enjoy. I owe a special debt to four black men, and one gun.

The most important of these men, to me, was my father. When I was a boy, he and my mother moved our family of six from the Terrace Village public housing projects in Pittsburgh’s Hill District to a predominantly white neighborhood. While many of our neighbors welcomed us, we were not welcomed by all. I recall a brick through the front window, and other incidents. But burned into my memory is the Sunday evening when my father was beaten with a tire iron on the street in front of our home, and in front of us, his four little children. Those three young white men were never caught.

When my father, with his surgically reconstructed eye socket and jaw, was released from the hospital, he did something he never once considered when we lived in the projects. He bought a gun.

Please read the rest. Thank you, Professor Cole.


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The marvelous McDonald opinion of Justice Thomas

Posted by Richard on July 12, 2010

I've had Justice Clarence Thomas's concurring opinion in McDonald v. Chicago sitting on my desktop for some time, but hadn't gotten around to reading it. I'd read about it, of course, and knew his essential argument. But at the urging of a friend, I finally made time to read the whole thing this weekend. I'm very glad I did.

Completely aside from the fact that I agree with Thomas on every point, it's just such a pleasure to read such a well-reasoned, well-organized, and clear opinion. But don't take my word for it; Cornell Law School has it in both HTML and PDF form. I encourage you to read it for yourself. If you're not familiar with court opinions, all the inline citations might cause you to stumble a bit at first. But once you get used to them, you'll just skip right past them, and the clarity, readability, and directness of Thomas's prose will shine through. 

That such clarity is relatively rare in court opinions has as much to do with purpose as writing ability. Many opinions are attempts to twist the plain meaning of some constitutional provision or law into something more to the author's liking, or they're attempts to craft some compromise interpretation that papers over fundamental differences. Thomas simply examines the language and the historical record, explains those in clear and direct fashion, and arrives at a conclusion that leaves a fair-minded, rational person saying, "That makes sense." 

In Section I, Thomas provides a brief overview of how and why the Fourteenth Amendment came to be; how its Privileges or Immunities Clause was rendered meaningless by the Court's Slaughter-House and Cruikshank decisions (the latter is one of the Court's most racist and shameful rulings, and a perfect example of incoherent reasoning used to arrive at a conclusion to one's liking); and how the Court has since strained the Due Process Clause into a vehicle for protecting the "fundamental" substantive rights that the Court chooses to protect. Thomas forcefully rejects this state of affairs (emphasis added):

The notion that a constitutional provision that guarantees only “process” before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words. Moreover, this fiction is a particularly dangerous one. The one theme that links the Court’s substantive due process precedents together is their lack of a guiding principle to distinguish “fundamental” rights that warrant protection from nonfundamental rights that do not. Today’s decision illustrates the point. … 

I cannot accept a theory of constitutional interpretation that rests on such tenuous footing. This Court's substantive due process framework fails to account for both the text of the Fourteenth Amendment and the history that led to its adoption, filling that gap with a jurisprudence devoid of a guiding principle. I believe the original meaning of the Fourteenth Amendment offers a superior alternative, and that a return to that meaning would allow this Court to enforce the rights the Fourteenth Amendment is designed to protect with greater clarity and predictability than the substantive due process framework has so far managed.

Section II makes up the bulk of the opinion (pages 9-47 in the 56-page PDF). Its three parts consider the meaning of "privileges and immunities," the nature of the rights the clause was intended to protect, and whether it protects only against state discrimination or establishes a "minimum baseline of rights for all American citizens." It's a detailed, well-referenced examination of the historical record surrounding the circumstances leading up to the Fourteenth Amendment, the public debate and discussions about it, the intent of its supporters, and the understanding of its meaning by the general public at the time of passage and immediately after. In the process, Thomas systematically addresses and refutes all the arguments against the Privileges or Immunities Clause.

Section III takes up the issue of stare decisis and whether the precedents of Slaughter-House and Cruikshank ought to be retained. Thomas provides a detailed analysis of Slaughter-House and why its strained argument separating the rights of state citizenship from those of federal citizenship deserves to be rejected. In the process, in footnote 21 (page 51 of the PDF), he gets in a dig at Justice Stevens that made me jump up from my chair with a little whoop of joy (emphasis added): 

To the extent Justice Stevens is concerned that reliance on the Privileges or Immunities Clause may invite judges to “write their personal views of appropriate public policy into the Constitution,” post, at 3 (internal quotation marks omitted), his celebration of the alternative—the “flexibility,” “transcend[ence],” and “dynamism” of substantive due process—speaks for itself, post, at 14–15, 20.

Unlike Slaughter-House, Thomas dismisses Cruikshank peremptorily (I wholly approve; emphasis and link added):

Three years after Slaughter-House, the Court in Cruikshank squarely held that the right to keep and bear arms was not a privilege of American citizenship, thereby overturning the convictions of militia members responsible for the brutal Colfax Massacre. See supra , at 4–5. Cruikshank is not a precedent entitled to any respect. The flaws in its interpretation of the Privileges or Immunities Clause are made evident by the preceding evidence of its original meaning, and I would reject the holding on that basis alone. But, the consequences of Cruikshank warrant mention as well.

There follows a chilling three-page recitation of some of those consequences. Chilling.

Thomas concludes:

In my view, the record makes plain that the Framers of the Privileges or Immunities Clause and the ratifying-era public understood—just as the Framers of the Second Amendment did—that the right to keep and bear arms was essential to the preservation of liberty. The record makes equally plain that they deemed this right necessary to include in the minimum baseline of federal rights that the Privileges or Immunities Clause established in the wake of the War over slavery. There is nothing about Cruikshank ’s contrary holding that warrants its retention.

*  *  *

     I agree with the Court that the Second Amendment is fully applicable to the States. I do so because the right to keep and bear arms is guaranteed by the Fourteenth Amendment as a privilege of American citizenship.

There is nothing wrong with this country that putting four or five more Clarence Thomases on the Supreme Court couldn't cure.

UPDATE: If you're interested in the racial aspects of this case and Thomas's opinion, you might want to also read Damon Root's recent column at Reason.

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Help finalize the Contract From America

Posted by Richard on April 5, 2010

For almost a year, Tea Party Patriots, the umbrella organization for hundreds of local tea party groups, has been facilitating the creation of the Contract From America. Unlike the Republicans' 1994 Contract With America, the Contract From America has been a grassroots, bottom-up effort.

The planks were proposed by individuals from all walks of life throughout the country. Local tea party organizations discussed and debated them, helping to winnow the list down. And since January, over 360,000 people have voted for their top priorities. If you haven't, there's still time:

Right now, concerned citizens can visit the Contract FROM America website ( and choose their top ten priorities from a list of 21 planks proposed by committed Americans from all walks of life. By asking website visitors to propose and vote on the agenda, the result will be not a list handed down from on high by old-bull politicians, but one handed up from the true grassroots in this country. Once voting is complete on Monday, April 5, 2010, the Contract will be finalized into a blueprint that will serve notice to public officials about what the people want for their future.

The top priority to date, chosen by over 80% of respondents:

Require each bill to identify the specific provision of the Constitution that gives Congress the power to do what the bill does. (Proposed by: Brooke Storrs, Midland, MI)

Numbers two and three (virtually tied):

Stop costly new regulations that would increase unemployment, raise consumer prices, and weaken the nation's global competitiveness with virtually no impact on global temperatures. (Proposed by: Jan Heinricks, Spring, TX)

Begin the Constitutional amendment process to require a balanced budget with a two-thirds majority needed for any tax hike. (Proposed by: Erik Carter, San Diego, CA)

As Dafydd observed (emphasis in original): 

what the winning plank tells us is that, contrary not only to charges by devious Democrats, ludicrous liberals, and lying lefties, but also by some confusticated conservatives, laughable libertarians, and even asinine anarchists, the Tea-Party popular front is neither "populist" nor "fascist" but simply constitutionalist.

But if you still believe the MSM narrative of tea partiers as racist, misogynist, and homophobic angry white male Christian fundamentalist militia members — well, you might want to look at some recent polling.

According to Politico, much of the leadership of the various tea party groups is female, and a recent Quinnipiac poll found that the majority of the membership may be female, too. A Gallup poll released today found that tea party supporters were in most respects "quite representative of the public at large." Quinnipiac and Gallup aren't exactly right-leaning pollsters. 

Rasmussen — generally considered a more right-leaning pollster (largely because he surveys likely voters instead of just registered voters or all adults, like many other pollsters) — reported today that, although only 16% of voters identify themselves as part of the tea party movement, 48% of them think the average tea party member is closer to their views, while only 44% think the President is closer to their views.

So here's my take: The tea party movement is all about the Constitution, limited government, fiscal conservatism, and individual liberty. And it's becoming the new mainstream.

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