“Weaponizing” Essential Freedoms

I’ve now come across this posted on friends’ Facebook feeds multiple times now:

Karl Popper wrote of the tolerance paradox in 1945, in the wake of the rise and fall of Nazi Germany. Popper had just witnessed what a truly intolerant regime’s rise to power would look like, and therefore his musings in this arena need to be understood in that context.

Alas, those now spreading this meme on Facebook don’t have Nazi Germany on the mind when posting this. Well, in a sense they do, because to them everything is Nazi Germany. Unfortunately, as applied to the United States in 2018, those spreading the meme are closer in attitude to European fascists than the people they are supposedly fighting against.

The question raised by this approach is this: who gets to define intolerance? A neo-Nazi shouting about Jews and racial minorities is an obvious and easy target. Unfortunately, as has been seen time and time again across college campuses and other walks of life, almost any right-wing political opinion is deemed to reek of intolerance. Shutting down the dweeb holding a tiki torch in one hand (and usually a donut in the other) and shouting “White Power!” might be morally righteous, but when your same intolerance for intolerance causes you to shut down a pro-life speaker, then you need to fine-tune your moral senses.

In reality, memes like this, at least as applied in today’s political climate, are nothing more than excuses for self-righteous hypocrisy. Progressives grant themselves indulgences for violating long-established norms regarding free speech because, they tell themselves, they’re just refusing to grant a space for the intolerant. In reality, they’re just trying to shut down expression from people with different points of view.

This growing intolerance of free speech is a worrying trend. No, it is not confined to just the left, though I think it’s a greater problem on the left. Increasing numbers of college students and younger millennials are comfortable with the idea of placing asterisks next to the first amendment.

For years second amendment advocates mocked second amendment restrictionists for using this line of argument: “The Founding Fathers never envisioned the type of weaponry available today when they wrote the second amendment, therefore modern weaponry is not afforded constitutional protection.” The retort to this argument is that the Founders also didn’t envision the internet, smart phones, and other technologies giving megaphones to general citizens, so should those be curtailed under the first amendment as well? Sadly, the answer seems to be “Maybe, depending on who is wielding those technologies.”

The end of term decisions rendered by the Supreme Court, many relying on the First Amendment, have led to the charge that conservatives are “weaponizing” the First Amendment. This from the people who have abused, twisted, and distorted the commerce clause and the Fourteenth Amendment for generations, and who credulously accept legal jujitsu about penumbras and emanations. Now the Court has decided that First Amendment protections govern more than musty political pamphlets, and suddenly the Court has gone too far.

This New York Times opinion piece masquerading as a news article is emblematic of the trend. There’s a lot to suffer through if you decide to read the whole thing, but this cuts to the core of the issue:

Some liberals now say that free speech disproportionately protects the powerful and the status quo.

“When I was younger, I had more of the standard liberal view of civil liberties,” said Louis Michael Seidman, a law professor at Georgetown. “And I’ve gradually changed my mind about it. What I have come to see is that it’s a mistake to think of free speech as an effective means to accomplish a more just society.”

To the contrary, free speech reinforces and amplifies injustice, Catharine A. MacKinnon, a law professor at the University of Michigan, wrote in “The Free Speech Century,” a collection of essays to be published this year.

“Once a defense of the powerless, the First Amendment over the last hundred years has mainly become a weapon of the powerful,” she wrote. “Legally, what was, toward the beginning of the 20th century, a shield for radicals, artists and activists, socialists and pacifists, the excluded and the dispossessed, has become a sword for authoritarians, racists and misogynists, Nazis and Klansmen, pornographers and corporations buying elections.”

Let’s leave aside the naked stupidity of the last part of the final sentence, and interpret what this means: free speech is good until its wielded by people we don’t like the “powerful,” but then it’s problematic.

Funny, I have read almost every major piece of writing penned by Thomas Jefferson, Alexander Hamilton, and James Madison (and quite a bit more by their contemporaries), men who otherwise disagreed on much, and I don’t recall a single caveat about free speech rights being only for the less powerful. Oh, but I guess they were powerful white men, so their opinions should count for less.

What none of these supposed legal scholars seems to grasp is that the Court’s supposed turn on free speech is less of an ideological turn than a response to increasing encroachments on free speech rights. As governments increasingly attempt to dictate the terms of when and where free speech claims can be made, the Court is being thrown in the middle of more First Amendment battles. Fortunately we have a majority of justices who understand the First Amendment applies to wider applications than the printing press.

Look past Kagan’s hypocritical platitude about “black-robed rulers overriding citizens’ choices” – one imagines she won’t take such a stance if and when Roe comes up again before SCOTUS – and understand what’s happening. Progressives are re-examining the value of free speech because the counter-culture is on the right. If freedom of speech is allowed to flourish, then anti-dogmatic (at least of the new dogma) viewpoints might get a fair hearing.

It is frankly disgusting to see the upholding of free speech rights get libeled as “fascism,” but we’ve evidently entered the upside down world where freedom=slavery and where genuine constitutional and (more importantly) natural rights can be categorized as weaponized when employed by the undesirables. Progressives should think long and hard about who they want to call “fascist” in this milieu, but one can be forgiven for thinking that progressives seem incapable of thinking long and hard about much of anything these days.

Mitch McConnell: Savior of the Republic

Well today was uneventful.

Originally my post was inspired by recent Supreme Court decisions, but Anthony Kennedy’s sudden retirement announcement . . . well, actually, it didn’t change anything, because the basic theme is unchanged.

In light of the Supreme Court decisions handed down over the past week, most of them correctly (IMOHO) and narrowly decided, President Trump’s fanclub is crowing. Or as one Mensa candidate on Hot Air put it, “Never Trump cucks” should now realize their folly of their ways.

Indeed I have already praised President Trump’s nomination of not just Gorsuch, but a slew of other judicial candidates. That President Trump has almost totally farmed out judicial selections to the Federalist Society is a point in his favor.

Yet if we’re going to laud President Trump for putting on the Court the man who helped cast deciding votes in favorable outcomes, and as we look to Trump to nominate a Gorsuch-like candidate to replace Kennedy, we also have to give credit – maybe even more credit – to a man who is certainly no darling of the Trumpist right: Senate Majority Leader Mitch McConnell.

I have hardly been a McConnell booster myself, but McConnell has stood firm on a pair of separate occasions, and those actions have enabled both Trump to be in a position to nominate Gorsuch, but also to get him and all those other nominess confirmed.

When Antonin Scalia died, Republicans could have been forgiven for doubting McConnell’s ability and resolve to refuse a vote on President Obama’s nomination of Merrick Garland. Not only did he hold the line, he did so in a fashion that signaled to Republicans that there would be no acquiescence, managing to keep his moderates in the fold all along.

Once Trump was elected, McConnell then followed former Senate leader Reid’s lead in nuking the judicial filibuster. And as a former writer for a blog called Confirm Them which advocated such a maneuver during the Bush administration, I had no issue with what Reid did, knowing that it would come to bite Democrats on the ass. And it did.

McConnell is now moving at warp speed (for the Senate) in pushing through a host of other Trump appointments. One journalist who follows the administration seems to think that this is McConnell’s main purpose in life: getting as many Trump judicial nominations through the Senate as is humanly possible.

For all his failures as majority and minority leader – real and imagined- McConnell ought to be commended for his overwhelming success in this arena.

Of course none of this solves the fundamental problem with the judiciary. That so much hangs in the balance based on a single Supreme Court Justice is deeply disturbing. This Jay Cost thread on twitter sums up the issues nicely. As he puts it in one of the tweets:

I am all in favor of institutions designed to strike down unjust or unwise laws. I just do not think that in a republic of 330 million people, it should be left to five lawyers who all hail from like 2 or 3 law schools.

While I feel confident Mitch McConnell will be able to shepherd Donald Trump’s Supreme Court selection through the Senate, my excitement is tempered by the knowledge that we have not quite grasped how to allow judicial review without the concomitant subservience to to the Judicial Branch. Be that as it may, a tip of my hat to Cocaine Mitch and his deft maneuvering.

Supreme Court Victory for Federalism

I have long argued that other than the 14th Amendment, the most abused part of the Constitution – used to justify heinous judicial overreach – is the commerce clause. Indeed, other than the Court’s odious abortion decisions in Roe and Casey, the worst sustained* Supreme Court decision is Wickard v. Filburn, a case in which the Court declared a farmer eating the bread he produced on his own farm affected interstate commerce. That decision, more than any other, served as the basis for federal intervention into areas of day-to-day life that had no connection to interstate commerce.

Today’s decision in South Dakota v. Wayfair is thus a victory for federalism. South Dakota enacted a law requiring out of state retailers to collect and remit sales taxes on products sold in South Dakota even if the seller did not have a physical presence in the state. Previous Supreme Court decisions held that retailers could not be required to collect sales taxes so long as they did not have a physical presence in the state, but today the Court reversed itself. In fact, two of those who voted in the majority in the 1992 decision (Quill Corp v. North Dakota), Justice Kennedy (who authored the opinion of the Court) and Justice Thomas, voted to overturn their own decision.

As usual, it takes Kennedy 24 pages to say what Thomas does in 1: “Whoops, my bad.” Thomas actually writes, in his concurrence, that he should have voted with the dissent in the 1992 case, and now experience has taught him the error of his ways. To be fair, Kennedy wrote the opinion of the Court and was required to be a bit more verbose.

Essentially the case comes down to fairness: the Court’s jurisprudence created a bizarre environment in which retailers could act as tax havens. So long as they didn’t physically set foot in a state, they didn’t have to collect taxes, while smaller entities with limited activity could be subject to collection activity if they had so much as a warehouse or a salesperson in state. Since the state law in question poses no real commerce clause issue, this inequity could no longer be justified. And as Justice Gorsuch writes in his concurrence, the Court’s jurisprudence had basically mandated state discrimination between out-of-state and in-state firms. As he writes:

For years they have enforced a judicially created tax break for out-of-state Internet and mail-order firms at the expense of in-state brick-and-mortar rivals.

There is no justification for the Court to construct what is in essence a tax shelter. Gorsuch, meanwhile, again hints that he is willing to re-examine the very concept of the dormant commerce clause – a tendentious reading of the Constitution which permits courts to overturn state actions even if Congress had not legislated in this space.

Oddly it’s Chief Justice Roberts, who was joined in the dissent by Justices Breyer, Sottomayor, and Kagan (meaning, yes, Justice Ginsburg voted with the majority), who offered a tepid argument against the majority. He writes:

Ecommerce has grown into a significant and vibrant part of our national economy against the backdrop of established rules, including the physical-presence rule. Any alteration to those rules with the potential to disrupt the development of such a critical segment of the economy should be undertaken by Congress.

While I’m normally a sucker for judicial deference to the legislative branch, here deference would not be constitutionally justified, and would prevent a state from enacting otherwise permissible  legislation. The economic impact of the decision is not within the Court’s purview.

It’s this last point which makes this case illustrative. Courts must render decisions based on statutory and/or constitutional considerations. In other words, they cannot be concerned about the wisdom of legislation they are reviewing. It may very well be that this decision will open the floodgates for other states to enact similar legislation, and this could have a negative impact on the economy. But that’s not for the Court to decide. So while the Chief is right about Congress being able to intervene, it should do so in a manner consistent with a true understanding of the commerce clause. That Congress could legislate in this arena doesn’t mean the state should be prohibited from doing so in the absence of Congressional action.

Roberts, distressingly, also rests his decision on what I will call super stare decisis. Since the Court has ruled twice already on this issue, there’s no third times the charm, regardless of the wisdom of those prior decisions. I say this is distressing because the constitutionality of abortion bans has been adjudicated twice at SCOTUS. Does this signal that the Chief would not vote to overturn Roe? Hmmmm.

While some might argue this decision is a blow to limited government activists, I’d suggest the opposite – this is a victory for states’ rights and for a plain reading of the Constitution.

* An important distinction, otherwise Dred Scott and Plessy would rank higher, as both were overturned either by amendment or later Court decisions.

Demonstrations of Poor Logic, Con Law Edition

This was tweeted by an actual law school professor:* Update: Assistant professor.

The Obama administration refused to defend a law that discriminated against LGBT couples.
The Trump administration refuses to defend a law that *prohibits* discrimination against cancer survivors.
Both involve refusals to defend a federal law, but the analogy ends right there https://t.co/4iFsBFtYjx

— Daniel Hemel (@DanielJHemel) June 8, 2018

Background: the Trump administration, or more accurately the Department of Justice, will no longer defend parts of Obamacare in court. The decision specifically relates to the part of Obamacare dealing with pre-existing conditions. It had been long-standing precedent that DOJ would continue to argue on behalf of legislation passed during previous administrations, even if the current administration does not agree with the law. Precedent had been set by the Obama administration’s decision to stop arguing on behalf of the Defense of Marriage Act (DOMA). Many conservatives were up in arms over the decision then, and now the shoe is on the other foot. Leftists are hyperventilating that this is somehow the most egregious act in American presidential history despite the previous president having done the same exact thing.

There are intelligent ways one could go about distinguishing these decisions, but the above tweet is certainly not one of them. It amounts to nothing more than saying you didn’t like the policy Obama’s DOJ didn’t argue for but you do like the policy Trump’s DOJ refuses to argue for, and so it’s like totes different. Uh huh. Now Hemel is not a constitutional law professor, but a law professor (or assistant professor) should be more adept at rationally and logically arguing points of law, regardless of the topic.

These are the minds responsible for teaching the next generation of lawyers. And we wonder why jurisprudence is such a mess in this country.

As an aside., Gabriel Malor links to an article he had written several years ago urging conservatives to resist the temptation to NOT fight fire with fire.

Which means that we are living in a crapsack world where Democratic presidents get to make an end run around Congress when they find it convenient to do so. And yet, Cooke writes that Republican presidents should nevertheless voluntarily hold themselves bound to an altogether more restrictive code of behavior. This unilateral disarmament would be political suicide. It leads directly to a world where Democratic programs and policies are easily implemented and enforced, but where Republican ideas face a host of self-inflicted procedural hurdles, followed by the chance that even if a conservative idea were to become law, a Democratic executive could simply ignore it.

The race to the bottom is unfortunate. It would not be my first choice. But the Democrats brought us here and, as Sen. McConnell recently said of the partisan repeal of the judicial filibuster, “it’s hard to unring that bell.” The Democrats are fighting dirty, which means this is no time for Marquess of Queensberry rules.

I’m having a hard time coming up with reasons Malor is wrong.

Assessing Masterpiece Cakeshop

I finally got around to reading in full the opinions in Masterpiece Cakeshop, LTD v. Colorado Civil Rights Commission. David French has a much more optimistic view of the wide ranging portents for religious liberty, and is joined in that assessment by the editors at National Review. Andy McCarthy and Darel Paul, among others, are not  so cheery. The latter reads the tea leaves of the five different written opinions and predicts other religious liberty litigants would not fare as well in future cases not involving such manifestly biased commissions.

Personally, I tend more towards French’s position, though I’m more reticent to see a great victory here than he is. What I’m more interested in is going through the five written opinions, because rarely has one Supreme Court case offered a clearer picture of the distinctions in how different Justices value the sanctity of religious liberty through a constitutional prism. In a sense, the opinions offer us a ladder of liberty, so to speak, with the top rung being more mindful of the value of the first amendment protections regarding speech and religious liberty.

Let’s start with the bottom rung, occupied unsurprisingly by Ruth Bader Ginsburg and Sonia Sotomayor. The former wrote the dissenting opinion (joined by the latter). Ginsburg would have unequivocally voted against Jack Phillips, or, as she writes, “I strongly disagree, however, with the Court’s conclusion that Craig and Mullins should lose this case.” Telling language considering they were not named litigants in the case, unless of course we’re lumping them in with the Et Al in the full case title. First, she argues that a wedding cake contains no clear expressive content. Then she claims – falsely – that Phillips denied a service to a homosexual couple he would have provided to a heterosexual couple.

As even the CCRC seems to concede, it is not the service that is at issue. Phillips would have produced other baked goods to Craig and Mullins, even presumably a wedding cake purchased for a heterosexual couple. Similarly, Phillips declined baking a cake for Craig’s heterosexual mother because the cake would have celebrated a gay marriage. Ginsburg attempts to distinguish the CCRC’s judgment against Phillips from a separate decision to permit another bake to decline baking a cake with an anti gay marriage theme, again falsely claiming that Phillips’ decision was based on the sexual identity of the couple requesting the service, whereas the other baker’s decision was motivated by the message on the cake. But this only works if one denies the expressive content of the cake, which almost all the other judges concede at one level or another. Ginsburg also turns a blind eye to the anti-religious content of several of the commissioners’ statements. She doesn’t see the discrimination – and even if one or two of the commissioners expressed some prejudice, so what? It doesn’t overcome the decision not to bake the cake. So Ginburg – and presumably Sottomayor – are okey dokey with outright hostility to the exercise of first amendment rights in the interest of non-discrimination.

Up a rung on the ladder are Justices Kagan and Breyer. They voted with the majority, but they based their decision primarily on the CCRC’s naked hostility toewards Phillips. Yet Kagan (whote wrote the opinion, joined by Breyer) doesn’t think his situation was similar to that of William Jack, the man who sought to have an anti-gay marriage cake made. They argue that the bakers who refused to bake the cake did not contravene the state’s public accommodation laws. “In refusing that request, the bakers did not single out Jack because of his religion, but instead treated him in the same way they would have treated anyone else – just as CADA requires.” But this distinction turns on whether Phillips singled out Craig and Mullins because of their sexual orientation, or rather, the refusal was based on his reluctance to participate, even tangentially, in the celebration of an event which was at odds with his religious convictions.

The truly disturbing part of Kagan’s opinion, as is often the case, comes in a footnote. The footnote is largely dedicated to rebutting Justice Gorusch’s concurrence, which I’ll get to in a moment. Kagan doesn’t see the inherit expressive nature of the wedding cake, arguing that while the bakers in the Jack case would not have baked a cake with an anti-gay message for anyone, Phillips otherwise makes wedding cakes for heterosexual marriages. In her words, “The cake requested was not a special ‘cake celebrating same-sex marriage.’ It was simply a wedding cake – one that (like other standard wedding cakes) is suitable for use at same-sex and opposite-sex weddings alike.” Kagan posits that a wedding cake is just a wedding cake. In the narrowest sense this might be true, but this is nothing more than a coy evasion of reality. The meaning of the cake, as far as Phillips is concerned, truly changes in nature if the marriage being celebrated is between a same-sex couple. Kagan’s argument is just a little too cute.

Kagan turns a blind eye to Phillips’ religious objections later in the footnote. Because a wedding cake is just a wedding cake, Phillips is discriminating based on the sexual orientation of his prospective customers, and this decision “has nothing to do with Phillips’ religious  beliefs.” This nearly beggars belief. It is no technical distinction to note that Phillips’ refusal is manifestly not based on the sexual orientation of the couple in question, but in the action they are celebrating, and thus Phillips’ objections are clearly religious in nature.

The concurrence in general, and the footnote in particular, makes clear that Kagan and Breyer would have decided against Phillips had the CCRC been less inept, meaning that there are four sitting of the justices on the Supreme Court whose commitment to religious liberty is rather weak at best.

So we’ve reached the middle rung, and surprise surprise, we find Anthony Kennedy. Even when he reaches the right conclusion, Kennedy’s opinions read like the ramblings of a middling college philosophy major.

Kennedy wrote the opinion of the Court in a decision that hinged on two elements, outlined above: the CCRC’s failure to treat Phillips’ religious freedom in an objectively neutral manner, and their disparate treatment of the bakers who refused service to William Jack and Phillips’ refusal to serve Craig and Mullins.

Kennedy opens up with an effort at deep profundity. “This is an instructive example, however, of the proposition that the application of constitutional freedoms in new contexts can deepen our understanding  of their meaning.” Reading this, it’s hard not to feel deeply nervous that our constitutional freedoms are in the hands of someone with the sensibilities of a goth emo kid.

Kennedy makes several allusions to the fact that the events of this case transpired before Obergfell, and thus before Colorado recognized same-sex marriage. Kennedy never directly says that the decision would have been altered in a post-Obergfell setting, but it would not be out of line to read that much into the decision. This distinction should have no bearing on the outcome. Colorado’s recognition of Craig and Mullins’ marriage should have no more legal weight. It’s not as though Phillips would have been participating in an illegal act, thus justifying his refusal.

The most troubling aspect of Kennedy’s opinion, and the one which justifies the pessimism of some of the commentators linked above, comes about halfway through:

When it comes to weddings, it can be assumed that a member of the clergy who objects to gay marriage on moral and religious grounds could not be compelled to perform the ceremony without denial of his or her right to the free exercise of religion. This refusal would be well understood in our constitutional order as an exercise of religion, an exercise that gay persons could recognize and accept without serious diminishment to their own dignity and worth. Yet if that exception were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations.

It seems Justice Kennedy is standing at the ready with his pen and paper ready to check-off who within the marriage industry is eligible to make religious freedom claims.

On the other hand, French’s cause for optimism can be found in the latter half of Kennedy’s opinion. He makes a much firmer case that the CCRC acted irrationally in distinguishing the Jack and Phillips cases.

The treatment of the conscience-based objections at issue in these three cases contrasts with the Commission’s treatment of Phillips’ objection. The Commission ruled against Phillips in part on the theory that any message the requested wedding cake would carry would be attributed to the customer, not to the baker. Yet the Division did not address this point in any of the other cases with respect to the cakes depicting anti-gay marriage symbolism. Additionally, the Division found no violation of CADA in the other cases in part because each bakery was willing to sell other products, including those depicting Christian themes, to the prospective customers. But the Commission dismissed Phillips’ willingness to sell “birthday cakes, shower cakes, [and] cookies and brownies,” App. 152, to gay and lesbian customers as irrelevant. The treatment of the other cases and Phillips’ case could reasonably be interpreted as being inconsistent as to the question of whether speech is involved, quite apart from whether the cases should ultimately be distinguished. In short, the Commission’s consideration of Phillips’ religious objection did not accord with its treatment of these other objections.

Later, he adds, “The Colorado court’s attempt to account for the difference in treatment elevates one view of what is offensive over another and itself sends a signal of official disapproval of Phillips’ religious beliefs.” This is all a bit more meaty than the contention that the CCRC would have been justified in rejecting Phillip’s claims had they been more temperate in their language. Here Kennedy seems to be making a much stronger argument calling for consistency in the application of viewpoint discrimination claims.

This is not exactly a homerun for religious liberty, because future commissions could just universally rule against all bakers, and Kennedy would be okay with first amendment violations so long as the states were consistent in application. So, as we seemingly always are after Justice Kennedy has ruled, we are left in a state of constitutional limbo.

Moving up the ladder we have Justice Gorsuch, who wrote a concurring opinion, joined by Sam Alito. Gorsuch’s opinion is mainly dedicated to dismantling Kagan’s concurrence, which I discussed above. He outlines the facts in the William Jack case and the Phillips case, noting that the bakers in the Jack case and Phillips all refused to bake the requested cake due to their personal convictions, and not based on the characteristics of the customers being refused service. For example, the bakers in the Jack case would have refused to bake the same type of cake for an atheist customer, and Phillips would not have baked a cake celebrating a same-sex wedding for a heterosexual customer. The Commission thus acted inconsistently, and presumed to know that Phillips’ actions were based on anti-gay animus whereas the three bakers who refused to serve Jack were not influenced by anti-religious animus. He adds:

The Commission cannot have it both ways. The Commission cannot slide up and down the mens rea scale, picking a mental state standard to suit its tastes depending on its sympathies. Either actual proof of intent to discriminate on the basis of  membership in a protected class is required (as the Commission held in Mr. Jack’s case), or it is sufficient to “presume” such intent from the knowing failure to serve someone in a protected class (as the Commission held in Mr. Phillips’s case).

This serves as a good rebuttal to Kagan, but is only a somewhat stronger explication of the constitutional problem than Kennedy, as itstill leaves us in the conundrum that another commission in the future can avoid constitutional issues so long as it applies its actions consistently. But Gorsuch wasn’t done there, as he continues to hammer home that the CCRC’s decisions were inconsistent. He writes that while states have enacted many anti-discrimination laws in light of the legal recognition of same-sex marriage, “it is also true that no bureaucratic judgment condemning a sincerely held religious belief as ‘irrational’ or ‘offensive’ will ever survive strict scrutiny.” Gorsuch goes further, writing “Popular religious views are easy enough to defend. It is in protecting unpopular religious beliefs that we prove this country’s commitment to serving as a religious freedom.” Gorsuch’s opinion (joined by Alito) taken in totality would indicate a Justice who would be skeptical of any state actions impinging First Amendment freedoms.

We’ve now reached the highest rung, and it should come as no surprise that it is occupied by Clarence Thomas, whose opinion (joined in part of Gorsuch) is a much more absolute defense of religious and expressive freedom.

Out of the gate, Thomas attacks both the CCRC and the law itself with characteristic bluntness.

Although the Commissioners’ comments are certainly disturbing, the discriminatory application of Colorado’s public-accommodations law is enough on its own to violate Phillips’ rights.

As always, Thomas would go much further than the Court wants to go. He addresses Phillips’ larger free speech claims. The Commission argues that people would have assumed Phillips, had he acquiesced to the Commission’s demands, was merely complying with the state’s public accommodations laws and not expressing a pro-gay marriage viewpoint so long as he posted a sign to that effect. Thomas writes that this “flouts bedrock principles of our free-speech jurisprudence and would justify virtually any law that compels individuals to speak.”

Thomas goes through the Court’s history (and indeed American history in general) to demonstrate the wide latitude it has given on what is deemed expressive content.

Applying this principle, the Court has recognized a wide array of conduct that can qualify as expressive, including nude dancing, burning the American flag, flying an upside-down American flag with a taped-on peace sign, wearing a military uniform, wearing a black armband, conducting a silent sit-in, refusing to salute the American flag, and flying a plain red flag.

Once the Court has deemed an activity to be expressive, the “Constitution limits the government’s authority to restrict and compel it.” Phillips believes his baking to be expressive content. The Commission’s suggestion that Phillips could merely have posted a disclaimer noting he doesn’t personally endorse gay marriage would absolutely violate Phillips’ first amendment rights, and would justify any state law compelling certain activity.

Finally, Thomas ends with an absolute defense of free speech and freedom of religious exercise.

States cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable, or undignified. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Johnson, supra, at 414. A contrary rule would allow the government to stamp out virtually any speech at will.

I don’t think it takes a detective to figure out how Thomas would vote on a wider first amendment claim.

So we’re left with a pretty clear picture of where all the justices stand. Well, almost all, as the Chief Justice did not sign on to any concurring opinion. Presumably he’s with Kennedy, but his reticence to sign on to either Gorsuch’s or Thomas’s concurrence could merely be strategic. As always with John Roberts, we’re left guessing.

In the end, the picture for religious and expressive liberty is muddled. To add to the uncertainty, it’s possible Kennedy will retire this summer, though I would wager it’s no better than a 50/50 proposition he will. It befits a man of his judicial and philosophical temperament that he would have a Hamlet-style internal monologue about retirement. And though Clarence Thomas is the only Justice absolutely committed to defend against state encroachments on First Amendment freedoms, I think it’s fair to assume Gorsuch (and Alito as well) would, at the very least, be highly critical of state encroachments on the First Amendment.

That our constitutional freedoms are so tenuous is subject matter for another time – maybe even a book.

On Our Judicial Overlords

One of the reasons I was not persuaded to vote for Donald Trump in the general election of 2016 was because I was not convinced the issues of judges was enough to overcome the Donald’s other deficiencies. First of all, I did not trust him to actually appoint constitutionalist (or originalist or whatever adjective we’re using these days) judges. On this, I was profoundly wrong. President Trump’s record thus far has been exceptionally strong. That he has almost totally ceded this aspect to the Federalist Society is a point in his favor.

But there was a more fundamental issue, and this has not been addressed. I argued then that even more appointments of constitutionalists to the bench would not solve the larger issue of judicial supremacism. Even if President Trump hits on 100% of his judicial appointments over four or even eight years, not only will he not have replaced all the terrible Clinton and Obama (and even some Bush I and II) appointments, he would leave unaddressed the basic question of the role of the judiciary in our constitutional republic.

And so we get decisions like this. Or even worse, this.

I’ll focus on the latter, because while the Oregon ruling was execrable on the constitutional merits, the latter is a grimmer reflection of the imbalance between the branches of government. Josh Blackman’s analysis at the link I provided thoroughly dismantles the legal reasoning of Judge Aslup. Thomas H Crown’s brutal twitter thread also highlights the issues with this ruling. In the end, the judiciary unreasonably meddled in executive branch affairs.

As Crown’s twitter thread shows, the issue is not just with the judiciary. The other branches of government have carelessly ceded power, or have been ineffectual agents in reclaiming lost authority. As Crown puts it in one tweet, “The problem with our system of government right now is diffuse responsibility and a categorical unwillingness by the legitimately-enumerated-and-responsible actors to retake their power and responsibility.” Expressly put, “The judiciary has absolutely no power to order the Executive to retain a program the Executive created ex nihilo and contrary to the express terms of a lawfully-enacted, Constitutional statute.”

As Crown puts it, the legislature should feel doubly aggrieved: by an executive (Obama) who unlawfully grabbed power, and now by a judiciary stepping in to exceed the executive branch’s decision-making capabilities. And as Crown correctly says, “The system is now designed to funnel power to the only unelected — and therefore least-inclined to republican responsibility — branch, then the second-least responsible, and leave the most electorally-responsible one the one with the least power.”

Unfortunately, there’s no easy solution to this mess. It has been a slowly evolving (or, really, devolving) process that began over a century ago. It would take a cultural shift to restore the equitable balance of power.

Some have suggested stripping courts of their judicial review authority in certain defined cases. This is a potential solution, but as always, it’s not necessarily a perfect one. An independent judiciary is a necessary force, and we cannot simply trust the executive and legislative branches to act within their prescribed constitutional parameters. Impeachment is another possibility, but it’s one few Americans have a stomach for. The reality is, any attempt to rein in the judiciary could have unintended consequences, and would be just as disastrous from a constitutional point of view. After all, the Supreme Court regularly intervened during the Obama administration when it attempted to exceed its constitutional authority, and those were justified and rational interventions. Had the Court not been there to act as a break, who knows what else the administration would have attempted.

As I said, there’s no easy fix. But for a nation that is always carrying on some kind of conversation or another, this seems to be a conversation actually worth having.

Book Review: How Hamilton Screwed up America

“Show, don’t tell” is a staple rule of writing. Though normally applied to narrative fiction, it ought to be a tenet of non-fiction, as it is crucial to provide substantiating evidence to prove a claim. Unfortunately, Brion McClanahan defies this cardinal rule throughout How Alexander Hamilton Screwed Up America, turning what could have been a valuable contribution to the internal debate on the right into an anti-Hamilton screed.

McClanahan’s thesis is that America’s founding principles were betrayed right out of the gate, and the arch antagonist is none other than the celebrated Alexander Hamilton. Hamiltonian nationalism, and the economic program it inspired, were unconstitutional usurpations of the original vision of an agrarian republic dominated by state and local interests. Hamilton’s constitutional interpretations were defiantly at odds with the bulk of his compatriots. What’s more, Hamilton outright lied during the ratification debates, underselling his nationalist vision to lull his fellow citizens into a fall sense of security, before unleashing his full-throated, state usurping program on an unsuspecting public.

Did I mention Alexander Hamilton lied? This is an oft repeated accusation in a book that at times reads liked a souped-up blog post, unleashing ad hominem attacks on the villains in McClanahan’s play-act, of which Hamilton is joined by three others: Supreme Court justices John Marshall, Joseph Story, and Hugo Black, who all solidified Hamilton’s betrayal through their extra-constitutional rulings.

McClanahan’s brief is pithy and concise. The narrative portions of the book are generally accurate (minus a few whoppers, such as labeling Stephen Knott a “liberal” historian), and distill the essences of the history and cases in a breezy manner. I could have used McClanahan while trudging through dull, dry constitutional law briefs in graduate school. Unfortunately, this pithiness comes at the expense of ever offering documentary evidence to substantiate his claims.

The fundamental flaw is McClanahan’s refusal to take Hamilton at face value, unless Hamilton’s words happen to provide support to McClanahan’s portrayal of him as a wild-eyed nationalist. Therefore, Hamilton’s famous constitutional convention speech where he proposed the elimination of the states and the establishment of a monarchy is the lodestar by which we are to judge all future Hamiltonian policy, but the Federalist Papers and other writings of Hamilton – to the extent McClanahan even deals with them – are dismissed as “lies” and evidence that Hamilton was trying to sell the public a “bill of goods.”

There is certainly plenty of fodder for an able historian to make a convincing case that Hamilton hid his ambitions from the new nation, and that he had a much more expansive view of federal power than most of his contemporaries. But McClanahan is not that historian, as he seems content to hurl accusations without exploring Hamilton’s words in greater detail. If one were presenting Alexander Hamilton as the great antihero of the American drama, it seems it would behoove that writer to dive deeply into Hamilton’s writings. And there is no shortage of writings to dive through – the man was, after all, non-stop. Yet in a book dedicated to the thesis that Hamiltonianism is the enemy philosophy of authentic America, there is frighteningly little in the way of detailed analysis of all but a shockingly small sample of Hamilton’s words.

For example, McClanahan expends an awful lot of energy trying to make the case that Alexander Hamilton’s speeches at the New York ratifying convention were contradictory to what he said a year earlier at the constitutional convention. He builds up John Lansing as the man who exposed Hamilton to be a liar, but after spending several pages on the exchange and celebrating Lansing’s obliteration of Hamilton, the actual words he quotes hardly live up to the billing. Basically, both men engaged in a petty squabble that had no real resolution, and relating this story does nothing to advance the thesis of the book.

Sometimes the evidence he offers seems to prove the opposite point he’s trying to make. In discussing the assumption debate, he makes hay of the fact that the constitutional convention dropped the assumption of state debts from the working draft of the constitution, the implication being that this signified its unconstitutionality. He then relates a conversation Madison and Hamilton had during the convention, where Madison and Hamilton seemingly agree “that it would be more advisable to make [assumption] a measure of administration than an article of the Constitution.” McClanahan contends that this is proof that even Hamilton conceded that assumption was unconstitutional, but this exchange would imply the opposite: that Hamilton didn’t think there needed to be an outright provision for assumption in order for it to be constitutional.

Even if McClanahan couldn’t effectively make the case that Hamilton somehow hoodwinked the American public, that doesn’t automatically mean he’s wrong. Well, he is, but he’s certainly not the first author to make the argument. And any honest biographer of Hamilton will concede that he could be, well, lawyerly at times. But the charge doesn’t stick not just because McClanahan isn’t up to the challenge, but because the charge ultimately rings hollow.

Hamilton wrote approximately 51 of the 85 Federalist Papers. Hamilton wrote the bulk of the early papers, and these covered the deficiencies in the confederacy. Similar themes run throughout these articles: the perils of direct democracy, the need for a stronger central government, the benefits of a more energetic government. Hamilton did not suddenly take the mask off after ratification, revealing his true nature. He pretty much wore his beliefs out there on his sleeve. In fact, take a look at Number 23:

The principal purposes to be answered by union are these — the common defense of the members; the preservation of the public peace as well against internal convulsions as external attacks; the regulation of commerce with other nations and between the States; the superintendence of our intercourse, political and commercial, with foreign countries.

He then adds:

This is one of those truths which, to a correct and unprejudiced mind, carries its own evidence along with it; and may be obscured, but cannot be made plainer by argument or reasoning. It rests upon axioms as simple as they are universal; the means ought to be proportioned to the end; the persons, from whose agency the attainment of any end is expected, ought to possess the means by which it is to be attained.

Hamilton has just laid out his entire platform in two paragraphs. He has delineated the areas over which the federal government ought to have ultimate authority. Then he adds what was to become the basis for his constitutional justification for most of economic program. And it also sure sounds an awful lot like Marshall’s language in McCulloch v. Maryland. Perhaps McClanahan is offering the ultimate compliment to Hamilton: he masterfully duped Americans by openly expressing his beliefs in plain sight. What genius.

What’s more, even when McClanahan is standing on slightly firmer ground, as he does with regards to Hamilton and the National Bank, he contradicts himself. McClanahan accuses Hamilton of – what else – lying about the constitutional convention’s views on a National Bank in a written message to George Washington trying to convince the president not to veto the bank bill. McClanahan argues that the absence of any positive call for such a bank in the constitution is proof that the institution was unconstitutional. In fact, a proposal to establish such a bank had been rejected by the convention. Arguably, McClanahan has a point here. But then he accuses of Hamilton of effectively playing Jedi mind tricks on Washington, refusing to address this point (raised by Madison). But Hamilton surely remembered that George Washington was the presiding officer of the constitutional convention. It’s hard to contend that Hamilton was trying to put one over on Washington, unless Hamilton had heretofore undiscovered knowledge that Washington was suffering from dementia.

As mentioned above, the book at times feels like a glorified blog post or Buzzfeed article. McClanahan forcefully attacks those with whom he disagrees – they’re liars, or they’re “silver tongued,” or otherwise engaged in “fantasy” or spreading “fairy tales.” Meanwhile, the heroes –  Thomas Jefferson and many of his fellow Virginians – are said to have “destroyed” their opponents. Indeed, his tendency to offer up quotes from Hamilton, Story, and Marshall as “proof” of their nefarious purposes without bothering to make any attempt at arguing why what he has quoted is as self-evidently bad as he alleges, calls to mind Jon Stewart smirking at the camera after playing a (selectively edited) clip of some Fox News talking head. The audience is supposed to just accept as given that what they’ve just heard is manifestly idiotic.

Oddly enough he has perhaps turned the old writing axiom on his head, for he “shows” through narrative discussion, but he does not “tell” us how what he has just shown is interconnected or how it proves his larger point.

Well he does tell us – he tells us what he’s just related is a “fairy tale” and a “fantasy,” words he would use to describe Hugo Black’s majority decision in Engel v. Vitale, the case which gave life to the incorporation doctrine. Even when standing on much firmer historical ground, as he is with Black, and with mountains of dubious constitutional opinions handed down by the famed jurist, he breezes through his chapter on Black in just a few pages, content to cite a couple of his decisions while repeating everything he just said about Hamilton, Marshall, and Story. This is not exactly compelling stuff.

Even if McClanahan were more adapt at proving his case, his thesis fails for a more philosophical reason: it’s just not true. He makes the fundamental error – and in this he is far from alone – in equating Hamilton’s desire for a more energetic government as a clarion call for the establishment of a leviathan state. It is undeniably true that Hamilton desired energy and efficiency in government, and he created national programs to establish the credit and economic viability of the young nation. But Hamilton’s call for energy and dispatch were related to a few specific and discrete areas over which he thought it most appropriate for the federal government to have primary responsibility, as articulated in Federalist 23.

Energy should not be confused with largeness.  Hamilton proposed that the government be energetic and efficient in the things that it is supposed to do; however, the functions of the government are limited by constitutional constraints. The government created by the Framers does not have a particularly large mandate to interfere in all manner of affairs. But where the constitution does permit action, Hamilton wanted that government to have the ability to carry out its duties swiftly and effectively. In short, Hamilton desired a limited but effective government.

And while McClanahan points the finger of blame at Hamilton, he posits that America would be made great again if it just went back to its Jeffersonian roots. This is the same Jefferson who aped Rousseau as much as, if not more than, John Locke. The Jefferson who casually called for the tree of liberty to be refreshed with the blood of tyrants, who embraced the French Revolution long after its sell-by date, who disclaimed against perpetual constitutions and thought they should be re-written every twenty years.

This is perhaps not the appropriate space to get into an extended debate about the relative merits of Hamilton and Jefferson vis a vis a minimalist, conservative state. Yet this is an essential conversation to have in right-wing circles, especially in the age of Trump. McClanahan represents a school of thought, populated by the likes of Ron Paul, Lew Rockwell, and Thomas DiLorenzo, who fetishize Thomas Jefferson and the agrarian, small government republic he supposedly represented. Yet this simplistic reading of history, wherein Thomas Jefferson represents small, local-dominated government, and Hamilton is the evil champion of nationalism and big government completely overlooks the much deeper philosophies of these respective men. A more through reading of both men, and their acolytes for that matter, would suggest that the cause of small government and liberty has a better champion in Hamilton.

What’s more, strict constitutional construction is a method of interpretation rejected by no less a light than Antonin Scalia. Taking Hamilton on his own terms, his method of construction was necessary if the constitution were to survive more than a generation. The constitution is not a legal code outlining every possible permutation of legislation. Did Hamilton’s textualism potentially open the door to the loose construction that dominated the federal judiciary in the 20^th century? Perhaps. But there is also no small leap from interpreting the “necessary and proper” clause as permitting the creation of a National Bank to “penumbras and emanations” granting a right to privacy and abortion. If anything, Jeffersonian strict construction, guided by the principle that the constitution ought to change every twenty years anyway, is a much more precarious construct, especially from a conservative point of view. Strict construction quickly ossifies the constitution, to the point it becomes an irrelevant governing document. If one were bent on destroying a written constitution, Jefferson-styled construction is a sure-fire winner.

Again, this a much deeper conversation that the right must have. I will commend Brion McClanahan for at least engaging in this topic and offering a different perspective, one that is certainly shared by a committed contingent on the right. Alas it is also a debate that merits greater consideration than McClanahan has given it.

Leftist Pleads with Justice Kennedy

Lately I’ve been posting straight to my Facebook page (over there on the right – see it in the corner?), but this will be a slightly longer post, so here’s my not so triumphant return to the blog.

Despite the recent string of unanimous (or near unanimous) Supreme Court decisions, there is still a sense that this deeply divided Supreme Court is a retirement away from having the balance tilted in a more constitutionalist direction. Elizabeth Hydra, president of the laughably named Constitutional Accountability Center*, offered a genuine cri de coeur, pleading with Justice Kennedy to remain on the Court.

*A quick perusal of the CAC website tells you all you need to know about them. They are refreshingly honest about their core mission:

As an action center, CAC promotes our conviction that the Constitution is, in its most vital respects, a progressive document, written by revolutionaries and amended by those who prevailed in the most tumultuous social upheavals in our nation’s history – the Reconstruction Republicans after the Civil War, the Progressives and the Suffragettes in the early 20th Century, the Civil Rights and student movements in the 1950s and 1960s. Through Constitutional Progressives, a coalition of leaders, organizations and individuals, we seek to wrest the Constitution from tea partiers’ control and restore our Nation’s Charter as a document that unifies and inspires all Americans, rather than divides us across ideological lines.

Their “Redefining Federalism” page – or, as it should more accurately be titled, their “Fuck Federalism” page – betrays their utter unfamiliarity with the political thought of those who wrote the Constitution. But enough about them,

Right at the outset we know we’re not dealing with an honest person:

First among them is the utterly broken process of Supreme Court nominations under President Donald Trump and Senate Republican Leader Mitch McConnell, which leaves little doubt that any nominee to replace Justice Kennedy would be intent on demolishing the key pillars of his legacy.

The “broken process” she refers to is this completely batty system whereby a simple majority of Senators can confirm a judicial appointee – you know, the system created by those equally batty men who wrote the Constitution.

Hydra continues:

As longtime Court-watcher Linda Greenhouse recently observed, thanks to Trump and McConnell, the Court has been turned into an electoral prize.

I’m going to give you all a moment to collect yourselves, because if you’re like me, you just rolled on the floor in a fit of hysterical laughter. In the world occupied by Hydra and Greenhouse, until the election of Donald Trump to the presidency, the Court was this completely apolitical institution unaffected by electoral politics. No previous election even partially hinged on the matter of judicial appointments.

Which I am sure is a plausible idea, assuming your knowledge of American history dates no farther back than, say, 2016.

For those who hold fast to the ideal of the Court as an independent institution above the political fray — including Kennedy, the Court’s longest-serving Republican appointee, as well as Chief Justice John Roberts — that is the last place they want it to be.

This is a mere chuckle, but still delusional. I think Chief Justice Roberts is unfairly maligned in conservative circles – he’s generally been a very good and reliable presence – but his handling of the health care cases, as just one example, can only be explained by politics.

We saw the Supreme Court nomination process reach the nadir of politics beginning in February 2016. Less than two hours after Justice Antonin Scalia’s death, McConnell cravenly decided to hold his vacancy open for more than a year, refusing even to give US Appeals Court Judge Merrick Garland — President Obama’s eventual nominee to the Court — a hearing, much less a vote on the Senate floor. Though Garland had bipartisan support, McConnell likely did this in the hopes of taking the nomination from Obama and giving it to a Republican president the next year.

And here we get to the next round of delusional fantasy. Once again, Hydra basically ignores all of American  political history to establish a fantasy world where the politicization of the courts didn’t occur until the big bad Republicans came along and changed everything. Nevermind the fact that the very policy the GOP pursued was one suggested by Obama’s own vice president once upon a time. Or that the very same man, along with Senator Ted Kennedy, is the the chief figure in the history of judicial polarization.

Senators Kennedy and Biden engaged in base calumny (both were “Catholics” and so should know what that means) in tearing down Robert Bork. Remember how Justice Bork would mean a return to segregated lunch counters and back alley abortions? Do you think that entire ordeal might have been a nastier and more poignant mark in the history of the Court’s politicization?

And it’s not like it started just there. How about King FDR I President Roosevelt’s court packing scheme? Does Hydra recall how a sitting US president wanted to pack the Court with a bunch of yes-men who would approve the president’s unconstitutional actions? A plan which was put on hold because sitting Supreme Court justices got the message, and then left anyway?

We could go back further. How about Roger Taney taking it upon himself to overrule decades of legal and constitutional Congressional action with regards to prohibiting slavery in the territories? Or even Chief Justice Marshall, refusing to recuse himself in a case in which was directly involved, and then rendering a decision which was very much a political decision in the way in which it was delivered?

Perhaps Elizabeth should crack open a history book, otherwise she can stop pretending that the politicization of the courts is a recent phenomenon.

Meanwhile, throughout the 2016 campaign, candidate Trump devised a series of litmus tests for whomever he was to nominate to the Court, which he promised would come from a list of names produced by the Heritage Foundation and Federalist Society, two conservative organizations. Trump plucked his first Supreme Court nominee, Neil Gorsuch, from that list. Today, Trump is expected to announce nominations to several lower-profile but immensely important judgeships on the federal courts of appeals, which will also likely include names from that list.

The nerve of that guy, doing what every single presidential candidate has ever done. I mean, it’s not like Hillary Clinton clearly defined who her judicial appointments would be and what issues would be paramount to them. Nope, no litmus tests there.

This is important because lower court nominees today can become Supreme Court nominees tomorrow, which means Trump’s litmus tests for his judges threaten key components of the priceless, though fragile body of law that Justice Kennedy has carefully built over the past three decades.

I love how this paragraph treats Justice Kennedy as though he were the only individual deciding case law over the past three decades. Sure, he’s been the tie-breaking vote and has had an oversized influence on American jurisprudence, but Hydra writes as though it would just be an affront to Kennedy’s legacy if lower court appointees did not share his, ummm, unique judicial philosophy.

Hydra goes on to lament the possibility of Kennedy’s handiwork in cases such as Casey and Obergfell being undone. The judicial merits (or lack thereof) of those decisions being put aside for the moment, if those represent Anthony Kennedy’s legacy to the Court, then for his sake, he should hope they are undone. Kennedy’s opinions in those cases read less like they were crafted by a seasoned constitutional expert and more like they were written by a college-aged emo kid for a philosophy paper.

With all that being said, it’s now greatly amusing to read this penultimate paragraph after today’s developments.

At this writing, several controversial issues are making their way before the Court, from voting rights to gun regulation. This month, in fact, two separate federal courts of appeal will hear challenges to President Trump’s revised Muslim travel ban — challenges that almost certainly will arrive before the Justices. In the years ahead, Kennedy’s influence over the nation’s future will be more compelling than ever.

Justice Kennedy: brave champion of civil rights. I wonder how he voted on that travel ban thing? Oooooh. Awkward. Well, he was only joined by eight other justices, so there’s still hope, right Elizabeth?