Voters, Consider the Fate of the Bill of Rights

by James C. Sherlock

Before voters go to the polls on Tuesday, I think it a useful exercise to consider the future of the Bill of Rights with a Supreme Court “expanded,” as promised by Democrats if they control the Presidency and the Senate, to provide a leftist majority.

To enable that reflection, it is useful to remember that the current Bill of Rights is composed of 10 amendments offered as constraints on the national government and, by extension of most of them, to state governments.

As a general observation, the left wing of the Democratic party opposes any restraints on federal power.

We will examine the controlling Supreme Court decisions that affect the enforcement of these freedoms and would be put in jeopardy by a court that embraced critical theory.

What follows are the musings of a citizen who is not an attorney, albeit a citizen who can and does read and recounts the common understandings of the Court decisions below.

Before we begin, remember the Court has found the Bill of Rights not subject to elections.

  • In West Virginia State Board of Education v. Barnette, (1943), the court majority wrote

“The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”

To the left, nothing is beyond the “vicissitudes of political controversy,” ever. So let’s see what is at stake.

First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Religious Freedom

  • LGBTQ agenda. Two Oregon bakers, Melissa and Aaron Klein, cited religious beliefs as their reason for not providing a cake for a gay wedding. The Kleins had to pay a $135,000 judgment to the couple for discriminating against them in violation of a state public accommodations statute. They ended up closing down their bakery. During the court’s previous term, justices ruled in favor of a Colorado baker in a similar situation, stating that a state body demonstrated improper hostility toward the baker’s religion in finding that he violated a state anti-discrimination law. The LGBTQ community won’t stop suing Christian shopkeepers until they find a Supreme Court to back them.
  • Secular absolutists. The Freedom from Religion Foundation, which calls itself the nation’s largest association of atheists and agnostics, are well-known for trying to stop prayer and other Christian activities from taking place in government spaces. Satanist groups have joined the battle, specifically targeting schools with Christian clubs and trying to shut them down. For a Supreme Court decision they oppose see Everson v. Board of Education of the Township of Ewing. A New Jersey law authorized reimbursement by local school boards of the costs of transportation to and from schools, including private schools. 96% of the private schools who benefitted from this law were parochial Catholic schools. A divided court found that the New Jersey statute did not violate the Establishment Clause of the First Amendment
  • Government. The Little Sisters of the Poor were dragged through the courts more than once trying to force them to purchase abortifacients for their employees under Obamacare rules. In Burwell v. Hobby Lobby Stores, Inc. a 5-4 Supreme Court held:

“As applied to closely held corporations, the regulations promulgated by the Department of Health and Human Services requiring employers to provide their female employees with no-cost access to contraception violate the Religious Freedom Restoration Act.”

Freedom of Speech and Association.

  • R.A.V vs. City of St. Paul. Several teenagers allegedly burned a crudely fashioned cross on a black family’s lawn. The police charged one of the teens under a local bias-motivated criminal ordinance which prohibits the display of a symbol which “arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.” The trial court dismissed this charge. In a June 1992 decision, the state supreme court reversed. R.A.V. appealed to the U.S. Supreme Court. In a 9-to-0 vote, the justices held the ordinance invalid on its face because “it prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses.” The First Amendment prevents government from punishing speech and expressive conduct because it disapproves of the ideas expressed. Under the ordinance, for example, one could hold up a sign declaring all anti-semites are bastards but not that all Jews are bastards. Government has no authority “to license one side of a debate to fight freestyle, while requiring the other to follow the Marquis of Queensbury Rules.”
  • Board of Education, Island Trees Union Free School District No. 26 v. Pico by Pico decided Jun 25, 1982. The Island Trees Union Free School District’s Board of Education (the “Board”), acting contrary to the recommendations of a committee of parents and school staff, ordered that certain books be removed from its district’s junior high and high school libraries. In support of its actions, the Board said such books were: “anti-American, anti-Christian, anti-Semitic, and just plain filthy.” Acting through his friend Francis Pico, and on behalf of several other students, Steven Pico brought suit in federal district court challenging the Board’s decision to remove the books. The Board won; the U.S. Court of Appeals for the Second Circuit reversed. The Board petitioned the U.S. Supreme Court, which granted certiorari by a 5-4 decision.
  • Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. In 1993, the South Boston Allied War Veterans Council was authorized by the city of Boston to organize the St. Patrick’s Day Parade. The Council refused a place in the event for the Irish American Gay, Lesbian, and Bisexual Group of Boston (GLIB). The group attempted to join to express its members’ pride in their Irish heritage as openly gay, lesbian, and bisexual individuals. The Massachusetts State Court ordered the Veterans’ Council to include GLIB under a state law prohibiting discrimination on account of sexual orientation in public accommodations. The Veterans’ Council claimed that forced inclusion of GLIB members in their privately-organized parade violated their free speech. The question before the Court was did a Massachusetts State Court’s mandate to Boston’s Veterans’ Council, requiring it to include GLIB members in its parade, violate the Council’s free speech rights as protected by the First and Fourteenth Amendments? The unanimous decision by the court was yes.
  • Boy Scouts of America v. Dale (2000). The Boy Scouts of America revoked former Eagle Scout and assistant scoutmaster James Dale’s adult membership when the organization discovered that Dale was a homosexual and a gay rights activist. In 1992, Dale filed suit against the Boy Scouts, alleging that the Boy Scouts had violated the New Jersey statute prohibiting discrimination on the basis of sexual orientation in places of public accommodation. The Boy Scouts, a private, not-for-profit organization, asserted that homosexual conduct was inconsistent with the values it was attempting to instill in young people. The question before the court was does the application of New Jersey’s public accommodations law violate the Boy Scouts’ First Amendment right of expressive association to bar homosexuals from serving as troop leaders? The court’s answer was yes in a 5-4 decision.

Freedom of the Press.

  • People v. Croswell (1804). Established truth as a defense for charges of libel.
    Near v. Minnesota (1931) A state law allowing prior restraint was unconstitutional. This decision also extended protection of press freedom to the states through the Fourteenth Amendment.
  • New York Times v. Sullivan (1964). The First Amendment protected all statements about public officials unless the speaker lied with the intent to defame.
  • Near v. Minnesota (1931) the Court struck down a state law allowing prior restraint (government censorship in advance) as unconstitutional. In so ruling, the Court applied the First Amendment’s protection of press freedom to the actions of state governments through the doctrine of incorporation. The left’s active censorship of the news through its control of nearly all of the press and major internet platforms suggests that this interpretation may be challenged.
    Campaign Finance
  • Citizens United v. Federal Election Commission. Citizens United sought an injunction against the Federal Election Commission in the United States District Court for the District of Columbia to prevent the application of the Bipartisan Campaign Reform Act (BCRA) to its film Hillary: The Movie. The Movie expressed opinions about whether Senator Hillary Rodham Clinton would make a good president. By a 5-to-4 vote along ideological lines, the majority held that under the First Amendment corporate funding of independent political broadcasts in candidate elections cannot be limited. The majority maintained that political speech is indispensable to a democracy, which is no less true because the speech comes from a corporation. The left wants government to control campaign finance, because of the “golden rule”. That remains true even though the Critical Race Theory Democrats have scared corporations into giving the bulk of their donations to Democrats.

Today’s progressives have left no doubt from their writings and their court actions that they want to reverse these decisions to permit the government to control speech, assembly and the press. Read what they write. Listen to what they say.

Second Amendment

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

  • District of Columbia vs. Heller, (2008), was a landmark 5-4 decision of the US Supreme Court ruling that the Second Amendment protects an individual’s right to keep and bear arms, unconnected with service in a militia, for traditionally lawful purposes, such as self-defense within the home, and that the District of Columbia’s handgun ban and requirement that lawfully owned rifles and shotguns be kept “unloaded and disassembled or bound by a trigger lock ” violated this guarantee.
  • McDonald v. Chicago (2010). The Supreme Court held that the Fourteenth Amendment makes the Second Amendment right to keep and bear arms for the purpose of self-defense applicable to the states.

Heller and McDonald v. Chicago are primary targets of the left.

Third Amendment

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

There has never been a Supreme Court Decision to provide a primary basis for a decision. As far as I know, the left is happy with this as written.

Fourth Amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

  • MAPP V. OHIO. In the 1961 case, Mapp v. Ohio, the Supreme Court decided that any evidence obtained in violation of the Fourth Amendment would be deemed inadmissible in court. The FBI violated the Fourth Amendment by lying to the FISA court to obtain warrants to surveil the Trump Administration.
  • KATZ V. US. The 1967 Supreme Court case Katz v. United States. The Supreme Court dictated that any conversation made with a reasonable expectation of privacy is protected under the Fourth Amendment and that wiretapping constitutes a search.
  • TERRY V. OHIO. Terry v. Ohio is a 1968 Supreme Court decision upholding “stop-and-frisk” policing. John Terry and two other men were walking around suspiciously in front of a building. A police officer approached them and found a pistol in Terry’s pocket. He ordered the three men inside the building and patted them down. He found a weapon on one of the other men. Terry and his armed friend were charged with carrying concealed weapons. The Supreme Court ruled that Terry’s search was reasonable and justified by the need to protect “the police and others nearby.”

The left would like to see all of these overturned to further empower the federal government they plan on running.  

Fifth Amendment

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

  • Gonzales v. Carhart. In 2003, Congress passed and the President signed the Partial-Birth Abortion Ban Act. The controversial concept of partial-birth abortion is defined in the Act as any abortion in which the death of the fetus occurs when “the entire fetal head […] or […] any part of the fetal trunk past the navel is outside the body of the mother.” Dr. Leroy Carhart and other physicians who perform late-term abortions sued to stop the Act from going into effect. The question before the Court was: Is the Partial-Birth Abortion Ban Act of 2003 an unconstitutional violation of personal liberty protected by the Fifth Amendment because the Act lacks an exception for partial-birth abortions necessary to protect the health of the mother? The Court’s answer was no. The left abhors this decision and wants to see it overturned.
  • Palazzolo v. Rhode Island (2001). May a property owner who acquired title to the property after it was subject to wetlands regulations still bring a takings claim under the Fifth Amendment? By a 5-4 decision the Court said yes. Discussing the post-regulation acquisition of title, Justice Kennedy wrote,
    “[w]ere we to accept the State’s rule, the post-enactment transfer of title would absolve the State of its obligation to defend any action restricting land use, no matter how extreme or unreasonable. A State would be allowed, in effect, to put an expiration date on the Takings Clause. This ought not to be the rule. Future generations, too, have a right to challenge unreasonable limitations on the use and value of land.”  This decision puts a brake on the state’s ability to take property without compensation for environmental purposes. The left wants it overturned.
  • Kelo v. New London. The question before the Court was does a city violate the Fifth Amendment’s takings clause if the city takes private property and sells it for private development, with the hopes the development will help the city’s bad economy? A 5-4 divided court said no. Justice Kennedy joined the liberal bloc in this decision. The decision said takings here qualified as “public use” despite the fact that the land was not going to be used by the public. The Fifth Amendment did not require “literal” public use, the majority said, but the “broader and more natural interpretation of public use as ‘public purpose.’” Conservatives despise this decision, and want it overturned.

In another issue related to the 5th Amendment, we have discussed repeatedly on this blog the threat posed to private property by “emergency” laws blocking landlords from collecting rent without just compensation by the government. These “free” (to the government) social programs are very attractive to the left. Do people with two homes really “need” two or can the government take one for the needy “temporarily” under a declaration of an emergency?

Sixth Amendment

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

One of most famous sixth amendment Supreme Court decisions is the most recent. The Supreme Court decided in April of 2020 (Ramos vs. Louisiana) that the Constitution requires that juries come to a unanimous decision to convict Americans of serious crimes. The left learned to appreciate originalism in this limited application. Justice Gorsuch, writing for the majority, said that when the 6th Amendment, including the right to a jury trial, was added to the Constitution in 1791, it was understood to mean that jurors had to reach a unanimous jury verdict. In this case the majority extended that protection to state courts.

Seventh Amendment

“In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.”

Curiosities in precedents for the enforcement of the 7th Amendment include the right to a jury trial for statutory damages in copyright infringement cases but not in patent cases and that the 7th Amendment has not been extended to the states. I know of no hankering on the left to contest it.

Eight Amendment

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

  • In Austin v. United States (1993) the Court held that forfeiture of vehicles and real property under drug laws is subject to the limitations of the Excessive Fines clause. The left wants to be able to use fines to threaten and/or destroy corporations and individuals with whom they have political differences.

Ninth Amendment

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

  • Griswold v. Connecticut (1965). The Court ruled that the Constitution of the United States protects the liberty of married couples to buy and use contraceptives without government restriction. It arrived at this ruling by the discovery of a right to privacy nowhere found in the Constitution. The ruling on contraception is not widely opposed. However, the “jurisprudential acrobatics” employed in finding a constitutional right to contraception based on the phantom privacy right were the basis for Roe. Abortion is a sacrament in the Democratic Party of today.

Tenth Amendment

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

  • In Printz v. United States, the Court reaffirmed states’ rights and the Constitution’s anti-commandeering provisions. In the 5-4 decision, Justice Antonin Scalia wrote the majority opinion which struck down part of the Brady Handgun Violence Prevention Act in violation of the 10th Amendment. Specifically, the Brady Act’s requirement for local sheriffs to perform gun background checks conflicted with the concept of “anti-commandeering” which had been set out as an important component of federalism in an earlier case, New York v. United States (1992). The left wants this overturned.

“The 10th Amendment is widely used in our court system on a regular basis as new issues arise when state governments feel that they are unfairly pressured to comply with federal statutes. The problem comes up far more than most Americans realize because it does not directly affect U.S. citizens. Throughout the years since it was designed, the 10th Amendment is cited when cases land on the docket regarding “Commerce Clause, Supremacy Clause, and Federal funding issues. The government must walk a fine line between funding programs within state government and overstepping boundaries of control and power. The Supreme Court rules on all of these issues to keep the federal government under control and the states powered with the intended autonomy.”

The left wants the federal government to be supreme regardless of the 10th Amendment.

We will see all of this play out next time the Democrats win the Presidency and the Senate.  They have promised us that when that happens they will try to pack the Court.  I don’t think they will succeed with a slim majority in the Senate, because I still believe that some Democrats will not vote for it.  We’ll see.

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91 responses to “Voters, Consider the Fate of the Bill of Rights

  1. Thank you. Very helpful to have this assembled in one document.

  2. “As a general observation, the left wing of the Democratic party opposes any restraints on federal power.”

    Bill Barr must belong to the left wing of the Democrat party

  3. To anyone interested in the history of the 2nd Amendment, I suggest reading the journal article below. The history of U. S. v. Miller is Washington politics at its worst. It reads like an implausible novel.

    What I found most interesting was the way Miller was chosen as a test case for gun control. FDR wanted a case:

    “With no defense muddying the waters, it was the government’s ideal test case. ”

    That right. Only one side presented arguments – the government.


    • U.S. v. Miller stands for the worst in American jurisprudence. Why didn’t a Supreme Court justice demand that the case be dismissed for a failure to present a case or controversy? Our Anglo-American system of law requires two parties to a dispute. Shameful.

      • “Why didn’t a Supreme Court justice demand that the case be dismissed for a failure to present a case or controversy?”

        The law in question had been ruled unconstitutional, so FDR needed the Supreme Court to overturn that ruling. The unconstitutional ruling was from a Judge who supported FDR, specifically so the case could reach the Supreme Court.

        Keep in mind, this all happened after FDR’s attempt to pack the Supreme Court. FDR was not successful in packing the court, but it served as a warning to justices that FDR would do whatever was necessary to get his agenda through. It served as a shot across the bow.

        “But in the late 1930s, President Franklin D. Roosevelt wanted to put restrictions on the court when it came to age. Largely seen as a political ploy to change the court for favorable rulings on New Deal legislation, the Judicial Procedures Reform Bill of 1937, commonly referred to as the “court-packing plan,” was Roosevelt’s attempt to appoint up to six additional justices to the Supreme Court for every justice older than 70 years, 6 months, who had served 10 years or more.”

        In the end, Perry says, two members of the Court switched to a pro-New Deal position, known as “the switch in time that saved nine.”

  4. This is a lot of paranoid hogwash. I will respond in detail later, but, like Steve earlier, I want to keep my place in line.

    • So you believe the Democrats want to pack the Court for no particular reason?

      I look forward to your critique of which of the cases I listed of which I wrote the left wants to overturn that you think the left actually favors.

      Please offer that list and we can debate it. This should be interesting.

    • I can hardly wait. I hope you will include a section demonstrating conclusively that we need not worry about our 1st Amendment rights.

      Just paranoia?

      “As someone who was raised in a liberal Democratic family in Chicago, I am still mystified by the conversion of the Democratic Party into an anti-free speech party, including demands for limiting speech on the Internet and social media. Yet, days after various Democratic Senators called for greater censorship from big tech companies, Twitter added another attack on free speech with the blocking of the account of acting Customs and Border Protection (CBP) Commissioner Mark Morgan. Morgan had tweeted on the success of new wall installed around the Southern Border.”

      • I, like you, await responses from our colleagues on the left that write specifically about which of the listed cases they think the left of their party would not like to see overturned.

      • Twitter is a private organization. It can block whoever it wants to, just as Jim Bacon can block people on this blog.

        • But Jim doesn’t.

          • But they all (BR, Twitter and FB, and more) can and do determine what the terms of service are.

            At some point, competitors to Twitter and Facebook with more lenient / less restrictive TOS will pop up if not already and people will have a choice as to just how much wild-wild west they want in a social media environment – a true “market” of social media!

            One could perhaps think of it in terms of online HOAs!

            If you want to participate at their site – you have to abide by their rules.

          • Well clearly. But right and practice are different.

            I have a right to carry a weapon for any legal purpose (per Scalia) one of which is NOT the overthrow of an elected government.

        • That is unequivocally false, Twitter can only block someone if they violate the TOS that they agreed to (or the subsequent revisions).

        • Twitter is a highly influential communication medium. James Bacon is an individual user of WordPress. Any comparison is laughable.

          WordPress itself might be a better comparison to Twitter.

          News media and social media have been using their considerable power to influence this election. That must not be allowed.

        • “Twitter is a private organization. It can block whoever it wants to,…”

          Twitter is a private organization, but bakers are not? Please explain.

          • Terms of service? No shirt, no shoes, no service , regardless of your color, sexual orientation or other?

            Twitter has competitors. Each one has it’s own terms of service. As long as they do not discriminate on color, gender, religion but instead on behavior… it’s legal.

            On ANY WordPress Platform – the owner of a specific blog has the right to set rules for participation – again – not on color, gender, race, etc..but on behavior.

          • Once again, you misrepresent the facts. Twitter and Facebook do not market their services as a platform for leftists, but clearly block content that they find objectionable to progressives. That’s fraud.

            The bakers persecuted have not refused to do business with anyone. Read the court documents. They have refused to customize a cake with a message that was objectionable to their faith. I think all bakers should have that right. Muslims should be required to put the face of Mohammed on a cake, Jews should be required to put a NAZI symbol on a cake, etc.

  5. Here is my response:

    First of all, I am not a proponent of expanding the size of the Supreme Court. I don’t think Biden is, either, and I don’t see any evidence that is the prevailing attitude of most Democrats, only a few loud, frustrated ones.

    Second, Mr. Sherlock focuses on the Bill of Rights. He leaves out other amendments to the Constitution, such as the 14th Amendment, which guarantees equal protection of the laws.

    Third, the Supreme Court has never held that any right guaranteed under the Constitution is absolute. Justice Black used to contend that “no law” meant “no law” with regard to the freedom of speech, for example. He was not able to get a majority of the court to adopt that viewpoint.

    Fourth, saying that “the left wing of the Democratic party opposes any restraints on federal power” is a pretty broad statement with absolutely nothing to back it up. Who is the left wing? How big is the left wing? From what I can tell, the left wing was not able to get any of its candidates nominated for President.

    Now, let’s take the examples provided and look at them more closely:
    First Amendment
    Religious freedom
    LGBTQ—As I pointed out above, no rights are absolute. In this case, there is a conflict between religious freedom and equal protection of the laws (14th amendment), as protected by the Civil Rights Act. Expand this contention by the bakers. Would it be OK if they refused to prepare wedding cakes for mixed-race couples on the basis of some religious principles they held?
    Secular absolutists—Freedom of religion applies to all religions. If government organizations are going to allow prayers in public functions by Christians, they should be required to allow prayers by Muslims, Hindus, or even Satanists. (There is that bothersome equal protection of the laws provision again.) Furthermore, why should public money be used to support private schools? Virginia and Prince Edward County tried that and the Supreme Court struck it down.
    Government—The Little Sisters of the Poor case cited here dealt with an interpretation of the Religious Freedom Restoration Act. That was not a First Amendment issue and I don’t understand what place this example has in a discussion of the Bill of Rights.

    Speech and Association
    R.A.V—That was a 9-0 decision. What basis do you have in thinking that this decision, including the Court’s “liberals” and “conservatives” would be overturned?
    Board of Education—The Court of Appeals reversed this decision allowing book banning. What makes you think that the Court would uphold the book banning? Or, maybe, you are afraid they won’t? The Supreme Court has granted certiorari. Usually, the breakdown of certiorari votes is not provided. If I had to guess, I would say that the four votes against certiorari would be the “liberals” on the Court.
    Hurley—This was an unanimous opinion. Again, why do you think the principle would be in jeorpardy?
    Boy Scouts—This was a close question. It is moot now that the Boy Scouts have reversed their policies.

    Freedom of the Press

    Here is a place where the paranoia is in full force to think that any court would reverse the long-standing precedents of Croswell, Near , and Sullivan. “The left’s active censorship of the news through its control of nearly all of the press and major internet platforms suggests that this interpretation may be challenged.” This is preposterous on its face. There are plenty of conservative news outlets out there, e.g. Fox News, the Wall Street Journal, Rush Limbaugh, and the Sinclair Broadcast Group.

    It is ironic that someone who has expressed a lot of exasperation about the amount of money being donated to politicians for the re-election would be worried about Citizens United being overturned.
    If anyone is a danger to the freedom of the press, it is the Current Occupant.

    Second Amendment
    There are plenty of moderates, not just leftists, that contend that Heller was wrongly decided. For example, retired Justice John Paul Stevens.

    Fourth Amendment
    Mapp—Evidence uncovered in violation of the Fourth Amendment cannot be used in court. Allegedly, the” FBI violated the Fourth Amendment by lying to the FISA court to obtain warrants to surveil the Trump Administration.” I say allegedly because, to my knowledge, no court has said that the FBI’s action was a violation of the Fourth Amendment. Besides that, what is your point? That evidence has never been introduced in a court case.
    Katz—Wiretapping constitutes a search. Again, what is your point? Do you have any grounds for insinuating that Justices appointed and confirmed by Democrats would hold otherwise?
    Terry—unreasonable search. This is a very complicated issue. To go back to a case that is more than 50 years old is to ignore all the nuances in subsequent cases.
    “The left would like to see all of these overturned to further empower the federal government they plan on running.” Such a broad indictment without any supporting evidence is irresponsible.

    Fifth Amendment
    Gonzales—Since I oppose abortion and am not familiar with this case, I can’t comment too much. It seems, on the face of this description, to have turned on a narrow interpretation. If Democrats get the majority in the Senate as is presupposed by this post, then the “left” would not have to overturn this case. It could just repeal the legislation.
    Palazzolo—Based on the description, I would probably agree with the minority in this case. If you know property that you acquire is subject to regulation, you should not be able to get the government to pay when that regulation is applied. However, the case was probably more complicated than that; they usually are. By the way, the Current Occupant loves the government takings clause. He tried to get New Jersey to condemn property so that he could expand one of his casinos. His government has also been very aggressive in condemning land in the Southwest so that he could build his wall.
    Kelo—“Conservatives despise this decision, and want it overturned.” Does this mean that you hope the newly-constituted Court will overturn it and, thereby, allow states to condemn property for economic development by private entities? Shades of the Dominion pipeline. By the way, Virginia amended its constitution several years ago to prevent this type of condemnation.

    Sixth Amendment
    Again, what is your point? You started off this blog by asserting that the Bill of Rights was in dire danger if the “left” was in charge. Do you think the “left” would be against this. I love the irony here. The originalists contend that they want to apply the law as it is written. But, the Constitution does not say there has to be a unanimous decision. But Gorsuch says that was “understood”. I thought “textualists” went by what is written, not what was “understood”. I need to read this opinion.

    Eighth Amendment
    “The left wants to be able to use fines to threaten and/or destroy corporations and individuals with whom they have political differences.” Another blanket statement without any evidence to support it.

    Ninth Amendment
    I agree that Griswold was a bad opinion, both from the perspective of legal reasoning and result.

    Tenth Amendment
    “The left wants the federal government to be supreme regardless of the 10th Amendment.” Yet another statement without any evidence to support it. The Current Occupant does not like the Tenth Amendment. He has tried to overturn California’s emission standards; he has railed against, and threatened financial penalties on, “sanctuary cities”.

  6. “LGBTQ—As I pointed out above, no rights are absolute. In this case, there is a conflict between religious freedom and equal protection of the laws (14th amendment), as protected by the Civil Rights Act. Expand this contention by the bakers. Would it be OK if they refused to prepare wedding cakes for mixed-race couples on the basis of some religious principles they held?”

    As a policy matter, I don’t have trouble with gay marriage as a civil institution. Justice Kennedy’s opinion in Obergefell v. Hodges was an illogical and legally incompetent opinion. Had anyone in my law school class had proffered this in a test on Constitutional Law, she/he would have flunked. It’s nothing more than made-up law. If I were on the Supreme Court, however, I would not vote to overturn it as reversal would be too disruptive to society. Mocking Kennedy’s [email protected] opinion would happen regularly though.

    When this new right “whole cloth” clashes with a real right of freedom of religion requires some deeper analysis. If I work in a bakery, I’m going to sell cakes, donuts, bread, and pies to anyone to comes in the door and offers to pay. Similarly, putting icing on a cake as requested is a simple ministerial action. I don’t think it raises a constitutional issue. Neither does a request for a marriage license by a gay couple to a government employee in the county clerk’s office.

    But when a person, not working for the government, is asked to perform personal services related to a gay wedding a different result is compelled. I think there is a fairly high bar to when services become personal and not simple ministerial acts of commerce. But when a request is for a religious wedding, custom wedding planning to emphasize the same sex event or making a custom wedding cake, create a poem or musical piece or other personal service, the religious rights of the offeree come into play.

    The issue is not a mixed race wedding, it’s gay marriage.

    • But as you know, principles set out in one case of facts often get applied to a different set of facts. If someone in business objected to a mixed-race marriage on the basis of his religious beliefs, could he then refuse to provide a service, which is available generally to his customers, to that couple?

      • and just about anyone with any religious “conviction” could then deny service to anyone who is not of their religion?

        someone needs to explain what “public accomodation” actually means in law.

  7. Your point is valid; cases relate to other cases. But let’s first address the main issue – the conflict of a “right” that grew out of Griswold and its subsequent twisting and turning of penumbra and emanations with a right specified in the First Amendment to the Constitution. The clear goal is to force religious bodies to perform same-sex weddings or lose their tax exemption. The goal is to force religious bodies to modify their beliefs and doctrine to match secular beliefs. The left truly wants to write the First Amendment’s protections for religion out of the Constitution.

    The problem on the left is that many believe there is a hierarchy of rights and that the left gets to decide that hierarchy. Did you see Senator Ed Markey’s remarks last week that original intent must be ignored because it’s racist? So that means whoever is in power gets to interpret the Constitution as it sees fit, except that this wouldn’t apply to the right. This means Civil War is necessary.

    It’s as absurd as the Virginia Democratic Party, which doesn’t like the Electoral College, trying to legislate around it instead of trying to repeal it. But, of course, if an election ever went the other way, the D won the Electoral College and the R won the popular vote, they’d find a yet-to-be-discovered emanation that meant the statute need not apply.

    • I don’t see the cases now before the courts as trying to “force religious bodies to modify their beliefs and doctrine to match secular beliefs.” That would and should never pass muster under the First Amendment. What is at issue is whether people can violate the rights of other people, i.e. deny them the equal protection of the laws, based on their religious beliefs. If you are in the business of serving the public, you have to serve all the public. You can’t pick and choose based on what your religious beliefs tell you.

      Personally, if I were part of a same sex couple who was denied service, I would just take my business elsewhere.

  8. Excellent conversations on both sides, which is what I hoped for when I wrote this.

    The press talks about court packing all the time, as if it were a political game of one-upmanship, but does not provide specifics of the potential implications within the legal system, so I thought I would take a crack at it.

    • The eroding integrity of the Supreme Court, and courts in general, and the treating of court appointments as a political game, is one of the great causalities of the past few years. Who started it depends on how far back you want to go. But both sides participated. Harry Reid made a major mistake when he got frustrated with McConnell’s incessant filibustering and eliminated the filibuster for the lower court judges. McConnell’s holding open circuit court vacancies and refusing to even consider Obama’s nomination to the Supreme Court and then eliminating the filibuster for the Supreme Court to enable Trump to fill it with Federalist Society candidates finished the damage. In a perfect world, I would reinstate the filibuster for judges, especially Supreme Court justices. Anyone with a lifetime appointment should command a supermajority to be confirmed.

      • In today’s political environment, filibuster for judges would mean no judges until one party gained 60 senate seats and the Presidency.

        • It does not have to be that way. After all, Obama’s two nominees (who were voted on) got more than 60 votes: Sotomayor 68 and Kagan 63. John Roberts (nominated by George Bush) was confirmed on a 78-32 vote.

          But, I am afraid you are right. If Biden wins and the Democrats take the Senate, Republicans would filibuster any nomination, if the Democrats were to reinstate the filibuster.

    • Some folks on the left but by no means all of them – more like a minority would want to pack the court.

      Stoking that idea is fear mongering from those with paranoidal tendencies.

      In the end, a minority is not going to be able to enforce laws on the majority that they disagree with – even with a Conservative SCOTUS and I have faith and confidence in the Constitution itself for that.

      I do have skepticism on the ones that claim to be “textualists” on issues that are not addressed at all in the Constitution.

      For instance, Heller is misrepresented here – it said that the Government DOES have the right to place restrictions on gun ownership.

      And as far as I can tell, we have never really “defined” exactly what “arms” are and we clearly restrict some kinds of arms without apparently “violating” the Constitution – at least I’ve never seen a case in front of the court where someone claims the Constution gives anyone the right to have, for instance, ground-to-air stinger missles… or other military-grade weaponry. Can anyone imagine some yahoo going to a place like Portland with a 50-cal machine gun in his pickup (like we’d see in 3rd world countries)?

  9. The right actually IS paranoid these days – because they fear the left would do what they would if they could!


    • Biden has refused to answer whether he would try to pack the US Supreme Court if he is elected president. He says he will only answer that question after the election. When habitual liars and plagiarizers refuse to answer a question I think it right to be a bit paranoid. It’s a simple question. Why can’t he provide a simple answer?

  10. I believe much of the above commentary misses the point of threats we face today, including for example, the ongoing efforts to abuse the American court system to achieve political ends outside the purview of American courts and to instead use the courts to exercise powers that are within the exclusive purview of the legislative and executives branches of government, and/or otherwise beyond the government’s power to interfere with, dilute, or diminish the unalienable rights of American citizens. Of course, aspects of these ongoing threats are well known, most recently discussed in the Senate confirmation hearings of Amy Coney Barrett, for example.

    Another primer on the subject can be found in Myron Magnet’s article titled The Founders priceless Legacy published this month’s The New Criterion, an edited version of its second annual Circle Lecture given by Mr. Magnet’s on Sept. 30.

    Here is a sample therein relative to the thinking of notable Virginia founders:

    “Long before Emma Lazarus wrote about the huddled masses yearning to breathe free, George Washington noted that, for “the poor, the needy, & the oppressed of the Earth,” America was already what he called “the second Land of promise.” This Promised Land offered, said James Madison, “an Asylum to the persecuted and oppressed of every Nation and Religion.”

    In fact, for Madison—trained at Princeton by the radical Scottish-born Presbyterian minister John Witherspoon—it was red-hot outrage over a remnant of religious oppression in the New World that drove him into a political career. Virginia, where Anglicanism was still the official, established religion until the Revolution, had jailed a group of Baptist preachers for their unorthodox religious writings. If you aren’t free to think your own thoughts and believe your own beliefs, fumed Madison, you aren’t free, period, since freedom is seamless. And as a practical matter, there can be no progress, either material or moral, without intellectual freedom. So when the twenty-five-year-old revolutionary took part in drafting Virginia’s Declaration of Rights, he rejected its original provision for religious toleration. It’s not government’s business to “tolerate” somebody’s belief or not. You are unconditionally free to think whatever your reason convinces you is true, government or no government—and that’s what the Declaration of Rights ended up saying.

    After Independence, Madison shepherded through the Virginia Legislature the Statute of Religious Freedom that Jefferson, then serving as ambassador to France, had drafted. No one can deny, Jefferson’s statute declared, echoing Milton’s sublime Areopagitica and prefiguring Mill’s On Liberty,

    that truth is great and will prevail if left to herself; that she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict unless by human interposition disarmed of her natural weapons, free argument and debate; errors ceasing to be dangerous when it is permitted freely to contradict them.

    Madison would never use Jefferson’s high-flown language, but he would certainly agree with his friend’s sentiment that “I have sworn upon the altar of god, eternal hostility to every form of tyranny over the mind of man.” These Virginia neighbors knew what it meant to individuals and to a whole culture to have to parrot an official orthodoxy, or else shut up—and they knew what further physical tyrannies such unfreedom of belief could unleash, as Milton had seen when he visited the aged Galileo, imprisoned for saying the Earth revolved around the sun. All history teaches this simple and obvious truth about freedom of thought and speech, but can one find a college administrator or newspaper editor with the courage to say this to politically correct mobs howling down unorthodox speakers or writers today? Today’s slogan seems to be: speak power to truth.

    The Founders’ conception of liberty rested on their Lockean political philosophy …” End Quote.

    • The podcast for this lecture is found here:

      The opening paragraphs of lecture are:

      “However unfashionable to say so at the moment, the American Founding is one of the noblest achievements of the Western Enlightenment. It created something breathtakingly new in history: a self-governing republic that protects the right of individuals—not serfs, not subjects, but equal citizens before the law—to pursue their own happiness in their own way. Who could have imagined that such a triumph would come under the violent attack that now seeks to deny and besmirch it? Whether it flies the banner of The 1619 Project, Black Lives Matter, or Critical Race Theory, the new anti-Americanism condemns the Founding Fathers’ project as conceived in slavery, not liberty, and dedicated to the proposition that we can never be equal citizens with equal rights.

      It is a militant anti-Americanism, too. Like the iconoclasm of the most violent English Puritans, who smashed the faces off the carved saints and angels in one sublime medieval church after another, or of the French sans-culottes, who dug up and desecrated nine centuries of royal bodies from their tombs in the Abbey of Saint-Denis, defacing for good measure the statues of the Old Testament kings on the façade of this first great Gothic building, today’s anti-Americanism seeks to pulverize and obliterate our national past as something too offensive and obscene to have existed.

      The current upheaval is the latest paroxysm of a cultural revolution that has gained momentum for half a century or more, and its trajectory from the universities to popular culture is too well known to need repeating. What I want to discuss here is the precious value of our inheritance from the Founding Fathers that today’s vandals want to destroy. If they succeed—since history, even our own, doesn’t always go forward and upward, despite the claims of the so-called “progressives”—we will find ourselves in a new Dark Age of constraint and superstition.

      At the heart of the Founding was a thirst for liberty. In announcing our national freedom from imperial domination, the Declaration of Independence began by asserting our right to individual liberty. For the Founders, that liberty was not some vague abstraction. They understood it concretely, as people do who’ve suffered its opposite. They grasped it like those Eastern Europeans who once lived under Communist tyranny, for instance, or like Jews who survived the Holocaust.

      Remember that the Plymouth Pilgrims were only the first of many who came to America to escape religious persecution. Hard as it is to believe today, British law once forbade non-Anglican Protestants from worshiping freely, and it barred them from the great universities and from political office for holding and professing the wrong beliefs. In response, thousands of Congregationalists, Presbyterians, Baptists, Quakers, and others fled. They brought with them their Dissenting tradition of governing their own congregations, and hiring and firing their own ministers—in other words, they brought to these shores a political culture of self-government. Moreover, because they were accustomed to reading the Bible and feeling free to judge its meaning for themselves—to believing that they had a direct relation to God and his word independent of any worldly institution or authority—they also brought a deeply rooted culture of individualism and personal responsibility. For them, the individual and his conscience, his freedom of thought and belief, were preeminent.” End Quote.

  11. James Wyatt Whitehead V

    The filibuster is not present in the Constitution and was only accidently added to the Senate Rules in 1806 by Vice President Aaron Burr. It seems the motion to move to the previous question rule was considered redundant and eliminated. Technically speaking there was no method to end debate and move to a vote thanks Burr. It was thought of as not needed, the old rule had only been used one time to force a vote. If you read the Federalist Papers, Hamilton and Madison opposed the idea of a super majority. The super majority was one of the prime weaknesses of the Articles of Confederation. The filibuster was very much just an idea. But even the threat of the filibuster caused Henry Clay to back down off of his Bank of the US charter machinations. The filibuster takes on new meaning in 1917 when the word cloture was added to the Senate Rules. Cloture was used to challenge The Treaty of Versailles, Huey Long’s policies, Civil Rights bills in the 40s/50s/60s. Cloture was a powerful six shooter for the Solid South. If you examine the 60 vote cloture rule and the filibuster it becomes an increasingly used political tool in the late 1960s and early 1970s. Senator Mansfield of Montana and Robert Byrd of West Virginia came up with a 2 track system for Senate motions to keep a filibuster from holding up all Senate business. The side effect was that it became easier to sustain a filibuster. Then comes November 21, 2013. The nuclear option.

    I always liked the theater of filibusters. But maybe, just maybe Madison and Hamilton were right. The majority rules. And they get to make the Senate Rules. Elections really do matter. Politicians have to work hard to get enough chips to make the rules for the next round of Senate business. Supermajorities clog up the drain.

    • Thank you James, very informative.

    • I tend to agree that a filibuster should not be available for legislation or for regular appointments. But, a lifetime appointment to a judgeship, especially the Supreme Court, should be one that can garner at least 60 votes in the Senate. Perhaps having that threshold would encourage the appointment of judges that could get bipartisan support. After all, majorities change.

      • James Wyatt Whitehead V

        I see your point Mr. Dick. Bipartisan support is the ideal threshold. But then I started to think about this. 115 judges have appointed to the Supreme Court since the first judge, John Jay. Prior to the invention of cloture in 1917, 68 judges were appointed without the supermajority rule. 48 of those judges were vote by acclamation. Essentially a voice vote. 20 judges faced a ballot vote. 1 judge, Stanley Matthews won by a single vote (too close to railroad robber barons). Since William Howard Taft and cloture 20 judges have been voted in by acclamation. The remaining modern judges cleared the ballot vote with little to mild no votes. Not until William Rehnquist is elevated in 1986 to Chief Justice can you find serious opposition vote in the Senate. A brief pause in partisanship was renewed in Clarence Thomas’s nail biter in 1991. Ginsburg, Bryer, and Roberts were spared partisanship. But every judge on the modern court since Roberts has displayed partisanship in the Senate vote like we have never seen before.

        I am not convinced the restoration of filibusters and cloture would restore bipartisanship in the selection of Supreme Court judges.

        The average time of service of the 115 Supreme Court judges is 16 years. There are currently 2 judges who have exceeded this average by a large margin and there are 2 more who are close to the 16 year average.

        The blue team may get a shot at all 4 of those seats. Then again the red team could too.

        Is there a halftime show on Tuesday night? At least intermission?

  12. With a 6-3 majority, and 4 of those 6 ideologues, you’ve only yourselves to blame.

  13. As I thought more about this post, it occurred to me that I could list some rights that we currently have that might be in jeopardy with the the Court that we now have, without worrying about any expansion of the Court. Under that Court, with three Justices espousing a textual, originalist approach to Constitutional interpretation and appointed by Trump, one occupying a stolen seat and one appointment rushed through because the Senate Republicans saw Trump trailing in the polls, the following decisions are a few that may be ripe for another look, along with possible justifications for their reversal:

    Brown v. Board of Education (9-0)–The Constitution only says that Blacks are guaranteed equal schools. It does not say they cannot be separate. And all that sociological argument about being separate inherently makes them unequal? Those considerations are appropriate for state legislatures to take into account, but that is not a legal argument and does not belong in courts.

    Miranda v. Arizona (decided 5-4). There is nothing in the Constitution that says suspects must be advised of their right to remain silent, etc. Citizens have a responsibility to know their rights.

    Gideon v. Wainwright (decided 9-0). The Constitution only says that a defendant has the right to be represented by an attorney. It does not say that the government must pay to provide an attorney if he is too poor to pay for one.

    Baker v. Carr (6-2) and its followup case, Reynolds v. Sims–The Constitution leaves it up to states to decide on their governing structure (it needs only to be “republican”). There is nothing that requires that state legislative districts be approximately equal in population (one man, one vote). The principle of federalism in the 10th amendment should allow states to set up their districts how they wish.

    Gutting the Voting Rights Act on the grounds that it is no longer needed–Oh, that’s right. The previous conservative majority of the Supreme Court has already taken care of that.

    • Yes, these “rights” and more have been created out of whole cloth in the minds of the judges as opposed to be literal words in the Constitution.

      And one does wonder if things like the Miranda ruling could be actually overturned in the future because it actually is not “text” in the Constitution and instead is essentially a court-created “right”.

      And I still wonder exactly how the word “arms” is actually defined. What does it mean? What weapons meet such a definition and what do not? When the word “arms” was originally written – the array of weaponry that was conceivably available for civilians was pretty much the same as the military had. Now days, can anyone really imagine the “right” to “arms” meaning military-grade weaponry?

      • Larry, if you are truly interested in 2nd Amendment issues you should read Supreme Court decisions. The limitation of weaponry for citizens is discussed at length in Heller. Here is an excerpt.

        “United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 47–54.”

        The important phrase here is “in common use for lawful purposes.”

        And yes, that does include some “military grade weaponry.” But don’t get excited by that phrase. It doesn’t mean nuclear missiles or any of the nonsense often spouted by gun control nuts.

        The military have boots and shirts. You can buy the same military grade boots and shirts too if you want. Similarly, they also use handguns which are available to civilians.

    • ALL PREVIOUS DECISIONS are open to review by this court. Thomas has already said it out loud.

      I warn that Poland may serve as an example of where this 6-3 religious majority will go.

      Roberts will have his hands full with these zealots.

      • James Wyatt Whitehead V

        You never can tell or predict what the Supreme Court might actually do. The Warren Court was not what Eisenhower had it mind but it shaped his presidency and the nation.

      • Why then did the Court give the go-ahead to all of the blue state-level machinations about the rules for voting in this election. You know the answer – because the Constitution gives that right to the states to govern election rules. So is that an outcome-based decision by the conservatives? Clearly not.

    • Dick, gutting the Voting Rights Act was absolutely justified. The fact that 4 justices believed that the provisions requiring federal oversight of essentially Republican states for crimes of 50 years ago shows just how partisan those Justices were. These are the same people that think requiring a photo ID is racist. If you want to see racism everywhere you will. Democrats have a vested interest in race-baiting to ensure black people continue to vote for them.

      • This was a law enacted and reenacted by Congress several times. What gives the Supreme Court the right to decide whether those choices by Congress were no longer needed?

        • The act contained “special provisions” that apply to only certain jurisdictions. A core special provision is the Section 5 preclearance requirement, which prohibits certain jurisdictions (those that had Jim Crow laws) from implementing any change affecting voting without receiving preapproval from the U.S. attorney general or the U.S. District Court for D.C. that the change does not discriminate against protected minorities.

          The Court in 2013, nearly 50 years after the initial voting rights act and 40 years since it was last re-authorized found only that this provision, a restriction on the constitutional right of each state to set the rules for elections, was no longer necessary under current conditions.

          Such restrictions by law on constitutional rights to maintain other constitutional rights must have a limited application. When conditions change, they must be vacated.

    • “Brown v. Board of Education (9-0)–The Constitution only says that Blacks are guaranteed equal schools.”

      Plainly, blacks do not have equal schools today. Why not?

  14. This post and the associated comments have missed the point. Perhaps on the eve of election day emotions run high and political punditry reigns supreme.

    The US Constitution is premised on the idea that people have certain God given rights. They have those rights even if a majority of Americans would seek to take those rights away. Freedom of religion is a good example.

    The construct of our government, as defined by the US Constitution, makes it very hard for the government to take away basic rights. One aspect of that construct is a separation of powers among the three major branches of government. US Representatives elected every two years, the president stands for election every 4 years, senators every 6 years and lifetime appointments to the US Supreme Court.

    Packing the US Supreme Court eliminates a critical check-and-balance. Whenever a party has a legislative majority and the presidency it can obviate the check and balance of the US Supreme Court by simply legislating more (or fewer) justices until that party effectively controls the US Supreme Court. After that, the US Constitution no longer matters. There are no more rights bestowed by the Creator. There are only rights that are given, and taken away, by the sitting majority of two very corrupt political parties.

    Our federal legislature has proven, over and over again, that it lacks the minimal courage to change the US Constitution via amendment. For example, while the screaming meemies on the left howl about the Citizens United decision they put forth no constitutional amendment to clarify that corporations are not people. Instead, they rake in special interest money while blaming the conservative court.
    The blockheads on the right refuse to demand constitutional limits on abortion while fighting the process on a state-by-state level. If life begins at conception then certainly the right to life is not something that should depend on the state of residence of the life in question.

    If presidents should not nominate Supreme Court justices in the year prior to a presidential election then let that be the law. If a filibuster should be required then let that be the law. Neither one dramatically changes the critical checks and balances in the US Constitution. But packing and unpacking the court every time one party has a majority in Congress and control of the presidency? Are you kidding me?

  15. “I am not an advocate for frequent changes in laws and Constitutions. But laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.”

    Thomas Jefferson.

    Next year will mark 50 years since a meaningful amendment to the US Constitution was adopted (the right to vote at age 18).

    I find it fascinating that the so-called “leaders” of the two political parties pretend that they can’t understand what Jefferson was saying. They have the power to amend the constitution but refuse to do so. Why? Because a constitutional amendment would be a very public endeavor which would subject them to national scrutiny. Instead, they play games with the US Supreme Court in the hope that the court will legislate for them, relieving them of their responsibility to govern.

    The politicians we have elected in this country are a disgrace to the American people.

    • Part of the problem is that we have already tinkered with the design. Senators were to represent the states, and were therefore appointed by each state legislature. The 17th Amendment changed that, and now Senators pander to the mob just like everyone else. I believe the 17th Amendment was a mistake.

  16. The Founding Fathers wrote a seriously flawed “legal” document that uses words and phrases like “God given” , and “reasonable”, etc…

    The failure to clearly define has led to “interpretation” of both what is written and not-written.

    Where did “Miranda Rights” come from? the right to bear “arms” – what are “arms”?

    • All of these issues have been discussed at length for many decades. I talked about “arms” above, but you can look up the others yourself.

      You will get more answers by reading than by writing.

  17. re: ” United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 47–54.”

    Can a law change what “arms” means? Who determines what “arms” means ? The Legislature, the courts, BATF?

    Did the Constitution say I could not have a sawed off shotgun or a stinger missile?

    If the Legislature can do it – and you cite the law, can’t they also pass laws for other Constitutional things?

    • “If the Legislature can do it – and you cite the law, can’t they also pass laws for other Constitutional things?”

      That’s called and Amendment and requires 2/3rd majority, Larry.

        • Imposition of taxes as that is what the NFA is 1934 did as well as all subsequent modifications.

          • Isn’t the point that we do have gun laws and regulations that appear to be far more restrictive than what the Constitution says?

            The Constitution sounds absolute in terms of who can own and I read “arms” from the perspective of when “arms” was written and understood, did it mean only certain “arms” or “arms” in general as they existed in all types and versions – i.e. parity with the military?

            The Constitutions did not seem to lay out restrictions on who could own and what kinds. How did that get added if not through non-Constitutional processes?

          • Larry,

            All Laws enacted by Congress are considered Constitutional until they are challenged and ruled upon.

            There is no test in Congress to determine if something is Constitutional, hence why we have Judicial Review.

            State Laws can be more restrictive but not less than Federal. However, they also are up to Court Challenge (ie. Heller).

            “The Constitution sounds absolute in terms of who can own and I read “arms” from the perspective of when “arms” was written and understood, did it mean only certain “arms” or “arms” in general as they existed in all types and versions – i.e. parity with the military?”

            When it was written there wasn’t a Standard Army and therefore it meant all “arms” in the vernacular.

          • And my point is that subsequent laws enacted appear to have changed or interpreted the meaning of “arms” in the original text of the Constitution.

            Who knows what “arms” actually meant if it was not defined or explicit and what gives the Courts or the legislature the right to decide what it means?

            I’m working off the idea that some on the Courts are “text” folks… no more or no less what the “text” says… or perhaps give your own idea of what textualists believe.

          • Larry,

            A “textualist/originalist” views the Constitution words to mean no less or no more than when they were written.

            That statement says that people have the right to keep and bear arms, arms being the vernacular of the period to codify firearms of all makes, models, calibers, firing and so forth.

            Yes, that’s the converse to Originalism. That is called Legislating from the bench as you view the Constitution as a “living and breathing document”, thereby taking on the meaning of the day rather than it’s intent.

          • so right or wrong to say: ” the right of [all] to bear arms [that are available] ?

            where do the modern-day restrictions as to who can own and what arms are “legal” come from in the mind of the “textualist/originalist” Are they “Constitutional”?

            Just seems to me to be a conflict in what the original words say and modern day restrictions.

            Probably enough discussion on this at this point.. does not seem to be going anywhere in particular.

        • No, they have not. Arms was the vernacular of the day describing weapons.

          • I understand that. But I thought that “textualists” actually believe the interpretation should be what the words say , what they meant back then, and nothing more and nothing less.

            And – if that premise is true (and you/others may have a different veiw) – then what are we to believe today – what “arms” means that would conform to the meaning intended in the original Constitution?

            It appears to me that there have been a lot of different interpretations over time by both the courts and the legislatures… and they change…. by additional legislation and court decisions.

          • “Arms was the vernacular of the day describing weapons.”

            That’s true, but the context in the Second Amendment includes bearing arms.

            The Law Dictionary
            Featuring Black’s Law Dictionary Free Online Legal Dictionary 2nd Ed.

            What is BEAR ARMS?
            To carry arms as weapons and with reference to their military use, not to wear them about the person as part of the dress. Aymette v. State, 2 Humph. (Tenn.) 158. As applied to fire-arms, includes the right to load and shoot them, and to use them as such things are generally used. Hill v. State, 53 Ga. 480.


          • Nathan,

            Heller disagrees with you.


            There was also no standing Army in those days, that is a construct of recent design.

          • Matt,

            I think you missed my point. I was not suggesting that bearing arms was limited to the military, if that’s what you thought.

            Though not a Second Amendment expert by any means, I am a certified firearms instructor and well versed in our Second Amendment rights.

            “Arms” is a very broad term for weapons, but within the context of the Second Amendment it’s talking about small arms – firearms. I chose to comment because of Larry’s repeated suggestion that there’s almost no limitation to what “arms” might mean with regard to the Second Amendment. True, there are some differences of opinion on the details, but the broad understanding through numerous court opinions is that it’s talking about small arms that would be commonly owned by individuals. Protected arms being those in common use by citizens for lawful purposes.

            The point I was attempting to make is in agreement with the link you provided.

            “What are Arms in this context, and what is the scope of bearing Arms?”

            “In the “District of Columbia v. Heller,” the Supreme Court decided the rights outlined by the Second Amendment did apply specifically to possession of firearms for purposes of self-defense.”

            The Second Amendment is an interesting study, and there are numerous issues that are relevant to Virginia specifically. I hope Bacon’s Rebellion will have more articles on this topic. The current article and discussion covers so many issues that no single issue is clearly in focus.

          • since you did mention my comment…. :

            ” the Supreme Court decided the rights outlined by the Second Amendment did apply specifically to possession of firearms for purposes of self-defense.”

            And I ask, where did Scalia discern this in the original words?

            It appears to me that they must made this up …. but admit, I have not read their opinion….

            Isn’t this SCOTUS “activisim” or a “living Constitution” interpretation?

          • Larry,

            You misunderstand textualism.

            “textualism should not be confused with so-called strict constructionism, a degraded form of textualism that brings the whole philosophy into disrepute. I am not a strict constructionist, and no one ought to be… A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.”

            Antonin Scalia, A Matter of Interpretation 23 (1997)

            As an illustrative example, Justice Scalia refers to a case in which the law provided for a longer sentence when the defendant “uses a firearm” “during and in relation to” a “drug trafficking crime.” In the case, the defendant had offered to trade an unloaded gun as barter for cocaine, and the majority (wrongly, in his view) took this meeting the standard for the enhanced penalty. He writes that “a proper textualist” would have decided differently: “The phrase ‘uses a gun’ fairly connoted use of a gun for what guns are normally used for, that is, as a weapon. As I put the point in my dissent, when you ask someone, ‘Do you use a cane?’ you are not inquiring whether he has hung his grandfather’s antique cane as a decoration in the hallway.”


  18. I agree with JS, good discussion! Seems to me the focus on individual rights fails to grapple with those terrible cases where the rights are in conflict. E.g., free speech vs freedom of religion. As TMT said, “The problem on the left is that many believe there is a hierarchy of rights and that the left gets to decide that hierarchy. ” Only it’s not just on the left — the right certainly seems to have a favorite, priority right or two. Freedom of speech > freedom from covid masks? Right to bear arms > AK47s in Capitol Square?

    • Acbar – I agree that many on the right have a hierarchy too. And we’d have a lot less civil breakdown if courts treated all rights similar, including as to the analysis of when exercise of rights can be regulated.

      Can speech be regulated ever? Bullhorns at 2 am in front of a hospital. Can the state prevent a convicted felon from possessing a firearm?

      But riddle me this. According to leftist judges, the state cannot require a doctor at an abortion clinic to have admitting privileges at a nearby hospital. If a right found in penumbra and emanations can have no limits, how do we impose place and time limits on speech? How do we regulate the types of firearms that can be sold in commerce? Both of the latter two are in plain print.

      If we continue to ignore the law in favor of results, we push ourselves closer to armed civil war.

      The November-December 2020 edition of the Washington Lawyer (D.C. Bar Association’s publication) contains a superb essay by Richard Janis on situational principles.

      It’s often hard to walk one’s talk, but it’s refreshing to see people try.

      • TMT

        I read the essay by Richard Janis on situational principles. It was fine as far as it went, but I was disappointed that more specifics weren’t included from today’s events.

        A good parallel for the Nixon years would be Andrew Weissmann. He should have been disbarred, not leading the Mueller investigation.

        “Both The Federalist’s Mollie Hemingway and former federal prosecutor Sidney Powell have exposed Weissmann’s reckless win-until-reversed modus operandi that has destroyed countless lives. Weissmann’s tactics sent four Merrill Lynch executives to prison, until a federal appellate court overturned their convictions and freed the men—but not before upending their lives.”

        “Also, Weissmann’s prosecution of former accounting giant Arthur Andersen for its role in the Enron collapse shuttered the firm, leaving tens of thousands of people unemployed. Several years later the Supreme Court unanimously reversed the Arthur Andersen conviction, but it was too late by then to undo the harm Weissmann had caused.”

        “Further research into Weissmann’s role in the prosecution of Enron executives Jeffrey Skilling, Kenneth Lay, and Richard Causey (the “Enron case”) reveal a more startling and concerning possibility: that Weissmann improperly threatened witnesses. In that case, co-defendants Skilling, Lay, and Causey filed a joint motion to dismiss the criminal charges brought against them, arguing the Enron Task Force, which Weissmann joined in 2002 and headed from 2004 until his abrupt departure in July 2005, engaged in multiple incidents of prosecutorial misconduct.”

    • Almost nothing is just on one side of the political spectrum, but one needs to look at the overwhelming prevalence. As a general rule, conservatives believe in individual rights and tend to leave those who disagree with them alone unless provoked with the loss of their own rights and liberties. Liberals are much more likely to insist on conformity.

      Many potential conflicts could be avoided if we simply stopped insisting on universal conformity to progressive ideas. Stop with the thought policing.

      The idea that someone may have a deeply held religious objection to gay marriage for example is not to be allowed by the militant left. They can’t tolerate non conformity, even if it has absolutely no impact on them.

      A prime example is the pizzeria owners who commented that they they wouldn’t cater a gay wedding. Does anyone actually want a pizza joint to cater their wedding? And if they did, why not just hire another pizzeria? Or avoid any discussion of what the pizzas are for and just order a large quantity of pizza?

      Many comments on this blog have misrepresented these situations by presenting it as though institutions were refusing to serve LGBT. That’s not the case.

      “No one has reported that Memories has actually denied service to anyone. The owners even told ABC 57 they wouldn’t refuse service to a gay man or woman — they would only refuse to cater a gay wedding. But TMZ reported that Memories temporarily closed its doors after being met with threatening telephone calls and criticism on social media.”

      If the militant left gets its way, this country will become a very confrontational and overwhelmingly intolerant and unpleasant place. To date, conservatives have largely refused to respond in kind. That won’t continue forever if they left keeps up.

      Take bakers for example. If the left insists that owners can’t be selective of messages or venues that violate their sincere religious beliefs, then Muslim bakeries will be forced to bake cakes for gay weddings and make cakes with images of Mohammed on them.

      Inclusion and tolerance need to go both ways. Whenever possible, just leave others alone. If not, intolerance and court proceedings will also go both ways. That would be a tragic mistake.

  19. re: ” textualism should not be confused with so-called strict constructionism, a degraded form of textualism that brings the whole philosophy into disrepute.”

    Well that pretty much make it subjective when it comes to how someone views what “arms” means as well as an unfettered right to possess them.

    There is no process that can be followed to arrive at the same conclusion each time. It just boils down to subjective opinions and those who don’t agree, just calling the other guys opinions “wrong”. That’s why Heller was 5-4 – not 7-0.

    • Just because interpreting laws requires reasoning doesn’t mean it is not disciplined, or valuable. If everything were ones and zeros, there would be no need for judges or jurists.

      The point of textualism (and originalism) is to diligently seek to be faithful to the laws and Constitution, rather than working backwards from one’s preferred outcome.

      It’s easy to make uninformed comments to the effect that every Supreme Court Jurist manipulates the law toward their desired outcome, especially if you have never read the their written opinions. A Supreme Court made up entirely of “Federalist Society candidates” as one commenter called them, would be fair to all parties.

      The detrimental effect for leftists would be that Congress would need to pass legislation or Constitutional Amendments to make the changes they seek. That’s not a bad thing.

      The alternative, of a court dominated by leftist jurists would be an oligarchy. Unelected jurists with unrestrained power to remake the country to suit their own ideology. That would be scary.

      • re: ” The alternative, of a court dominated by leftist jurists would be an oligarchy. Unelected jurists with unrestrained power to remake the country to suit their own ideology. That would be scary.”

        and why would that not also apply to the “right” ?

        I don’t see much difference once you back off from strict reading of the words.

        At that point, it become in your own mind what you think is the “correct” way to “reason”.

        In either case, left or right – you’re dealing with decisions with regard to circumstances that did not exist when the original words were written and using subjective meanings for words like “reasonable”.

        When 9 people split 5-4 on a decision – it’s oviously some subjective reasoning involved and to call one side “leftists”for their reasoning just illustrates that bias.

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