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.” https://infotracer.com/resources/tenth-amendment/

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.