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Part I dealt mainly with the Second Amendment. This Part II deals principally with the First Amendment and how the Constitution gets changed. Part III will deal mainly with the Bill of Rights in general.
President Obama’s second inaugural address is exceptionally well dealt with here. It is frightening.
The ideals of the Declaration of Independence are praised mostly for their flexibility in the face of their own anachronism, as their early embodiment in a political order (that is, the Constitution) proves inadequate to a changing world and must be gradually but thoroughly replaced by an open-ended commitment to meeting social objectives through state action.
. . . .
The individual acting alone or the entire nation acting through its government, those are the only options we have [according to President Obama]. The space between the individual and the state is understood to be empty at best, and at worst to be filled with dreadful vestiges of intolerance and backwardness that must be cleared out to enable the pursuit of justice.
President Obama apparently believes that the meaning of the Constitution often needs to be changed through social action to reflect prevailing (or at least his own) views of good and evil. He has lots of company. As stated here,
What does America stand for? That question is a lot more complicated than you might think. Our Founding Fathers established a Republic that was based on a set of shared values that were embodied in the text of the U.S. Constitution.
But today, many of our politicians openly disregard the Constitution whenever they want and it has become fashionable to mock the U.S. Constitution.
For example, the New York Times recently published a piece by Georgetown University Professor Louis Michael Seidman entitled “Let’s Give Up On The Constitution” in which he publicly called the Constitution “archaic” and “downright evil”.
This is a man that has been teaching constitutional law to the next generation of lawyers at one of the top universities in the nation for nearly 40 years. Unfortunately, Seidman is not an aberration.
The truth is that law schools all over America are absolutely packed with professors that teach that we should consider the U.S. Constitution a “living, breathing document” that must “evolve” as society evolves.
They also teach that when we find something in the Constitution that does not work for us today that we should just ignore it. In fact, in his New York Times article Seidman insisted that “constitutional disobedience” is “as old as the Republic.”
In Obama’s Living Declaration at Power Line on January 23d Scott Johnson contends,
Woodrow Wilson’s assault on the ideas of natural rights and limited government . . . eventuate in an administrative state and rule by supposed experts. Obamacare represents something like the full flowering of modern liberalism.
Wilson’s expressions of disapproval are the precursor to Barack Obama’s disdain for the Constitution and the Warren Court. Obama perfectly reflected Wilson’s views in his 2001 comments on the civil rights movement and the Supreme Court. In the course of the famous radio interview Obama gave to WBEZ in Chicago, Obama observed that the Warren Court had not broken “free from the essential constraints that were placed by the Founding Fathers in the Constitution, at least as it’s been interpreted, and the Warren Court interpreted in the same way, that generally the Constitution is a charter of negative liberties.” To achieve “redistributive change,” the limitations of the Constitution would have to be overcome by the Court or by Congress. (Emphasis added.)
Clever ideas all, if one’s purpose is to transform America radically from a constitutional republic with only defined and limited governmental powers into a dictatorship. It has been suggested that President Obama must “go for the throat” and “pulverize” his opposition. Should he succeed, his way is clear.
That’s a terrible idea, but if sufficient numbers accept it as “the change we have been waiting for” then “yes, they
may can will!”
Overdone? Perhaps. However, there does seem to be a popular and growing religion in America similar to the Religion of Kim in North Korea. Another nuclear test is being planned there; might Dear Leader Kim Jong-un be jealous?
I was not happy with his “first coming” and expect his second to be much worse. Will we soon arrive at the point where, because “the people” want it and “the Government can,” it will? Not if the people think about it, but that is a gigantic “if.”
The Constitution can be changed, legitimately, pursuant to Article V.
As popular opinion changes the Constitution can as well. However, it is not the proper function of any branch of our Government or of our civil society in general to amend it outside the provisions of Article V of the Constitution. The procedures set forth there are cumbersome and difficult, a “feature not a bug.” They allow change but usually prevent transitory sentiment from bringing constitutional changes like those seen in the world of fashion. Article V provides,
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that . . . . no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
Article V was used in 1919 to authorize prohibition under the Eighteenth Amendment. It was a dumb thing to do but enough people thought they wanted to amend the Constitution to provide for it. When enough people regained their senses, Article V was used in 1933 to adopt the Twenty-First Amendment repealing the Eighteenth.
With the widespread support required under Article V, the Constitution could be amended to authorize the creation of a dictatorship, the creation of a government controlled press and the prohibition of all other forms of free speech, the confiscation of all firearms and the execution of dissidents with no due process whatever. Such changes would be impossible to make now under Article V; the chances for them would be greater were the process less onerous.
Is there now any proposition so widely popular that the super majorities required under Article V might be obtained? The nation now seems more divided than ever so it appears unlikely. That is not a legitimate basis for permitting even large majorities to diminish the rights of others outside the requirements of Article V. It is an excellent reason for those requirements.
The First Amendment
The First Amendment provides,
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. (Emphasis added.)
As the free exercise of religion comes to be considered old fashioned, irrelevant to daily life and to be opposed “progressively” — and as political correctness becomes an increasingly common, “modern” and often successful opponent of free speech — the bright colors of the First Amendment fade into muted pastels through “progressive” executive and legislative action and through judicial interpretation. Perhaps the American Flag will eventually be redesigned with pale greyish stars on a field of light blue, muted pink and grey stripes.
Constitutional interpretation based on precedent and Anglo-American history is necessary. However, to the extent that interpretation of the Constitution is based on perceptions of public sentiment the process displaces the Constitution itself. Should an adherent to a religion, the tenets of which require witch burning, be able to defeat a murder charge based on his First Amendment right to the free exercise of his religion through the burning of witches? Should an Islamist who believes that Islam requires the decapitation of apostates be immunized on the ground that doing it constitutes the “free exercise” of his religion? Currently, such claims would likely be dismissed as frivolous and unworthy of serious consideration beyond a brief recitation of history to show that the Founders did not have that sort of thing in mind.
Witch burning and the decapitation of apostates do not now meet with popular approval in the United States. What if that were to change slowly but radically? Might substantial increases in our un-assimilated Islamist population sway judicial views on the decapitation of apostates toward treating it as a protected religious exercise? Probably not, but strange things happen incrementally and at the margins. Eventually they are accepted as usual and no longer seem strange or unacceptable. In the process they spread in unforeseen directions. Consider the New Deal expansion of the Commerce Clause, to be dealt with briefly in Part III.
Fifty years ago, States often treated abortion as a crime. Now abortion is significantly more popular and is treated as criminal only in rare instances. The Constitution has not been amended to take such changes into account. Instead, forty years ago the Supreme Court in Roe v. Wade (and later in its progeny) interpreted the Constitution by striking a “middle ground.” It declared that the States have insufficient legitimate interest in fetal life or well-being during the first trimester sufficient to override a pregnant female’s “right to privacy” and hence to prohibit abortion then.
However, Roe v. Wade said that legitimate State interest increases after the first trimester to the point that it permits States to criminalize late term abortions (other than those deemed necessary for the health of the pregnant woman) performed during the third trimester.
Mr. Justice Rehnquist dissented, questioning the Court’s analysis and the problems likely to ensue:
The adoption of the compelling state interest standard will inevitably require this Court to examine the legislative policies and pass on the wisdom of these policies in the very process of deciding whether a particular state interest put forward may or may not be “compelling.” The decision here to break pregnancy into three distinct terms and to outline the permissible restrictions the State may impose in each one, for example, partakes more of judicial legislation than it does of a determination of the intent of the drafters of the Fourteenth Amendment. (Emphasis added.)
Could the elements of Roe v. Wade instead have been incorporated into the Constitution via Article V? Would there be sufficient popular support for that now? If not, that would not provide adequate justification for accomplishing it through indirection, particularly in view of the Tenth Amendment acknowledgment that
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.
What about Federal laws requiring businesses owned by those (probably less than a majority of the population) who, based on their commonly held understandings of the doctrines of their religions, consider abortion a sin and hence consider themselves required to forbear from facilitating it by subsidizing their employees’ abortifacients? Liberty University, an ObamaCare case raising that question, had been dismissed by the Court of Appeals for the Fourth Circuit on procedural grounds. On November 26th, the Supreme Court directed the Fourth Circuit to consider the issue on its merits. The case will probably return to the Supreme Court after the Fourth Circuit acts substantively. It will then be interesting to see whether and if so how the Supreme Court (with or without compositional changes as President Obama appoints new justices to replace those leaving the Court) again deals with popular attitudes toward abortion and religion in resolving the First Amendment issues.
Holly Hobby is a corporation whose religiously oriented owners feel compelled by their beliefs not to facilitate abortion. Religious organizations such as churches are generally exempt from the ObamaCare mandate to do so.
Do people who do business through corporations, such as Holly Hobby, or even in their individual capacities, similarly enjoy free religious exercise rights comparable to official religious organizations such as churches? Or have churches and other statutorily preferred religious organizations been granted special status in contravention of the First Amendment prohibition against the establishment of governmental religions?
Holly Hobby raises issues similar to those in Liberty University and is also likely to make its way to the Supreme Court eventually.
Arts-and-crafts retailer Hobby Lobby became the largest corporation to defy new Affordable Care Act regulations, after the Oklahoma-based chain announced this week that it would refuse to comply with requirements to provide employees with insurance coverage for emergency contraception.
On Dec. 26, Supreme Court Justice Sonia Sotomayor, who hears emergency appeals for the U.S. 10th Circuit, refused to block the new regulations, ruling (PDF) that Hobby Lobby must comply while it awaits a decision in federal court. But the company, whose evangelical Christian owners say they object to the mandate on religious grounds, said it would refuse, meaning it could be fined as much as $1.3 million per day by the IRS. (According to the Affordable Care Act, refusal to comply can result in fines of $100 per day per employee.)
Hobby Lobby is one of several for-profit companies to file lawsuits against the regulations on religious grounds, and is one of the few not to be granted a temporary injunction. In addition to many nonprofit religious groups, 12 for-profit plaintiffs have filed suit, and nine have been granted injunctions, including the evangelical publisher Tyndale and a Mennonite cabinet manufacturer. Hobby Lobby, on the other hand, was denied an injunction by the 10th Circuit Court of Appeals, which agreed (PDF) with a district court that the harm the regulation would cause Hobby Lobby’s owners was too vague and indirect to merit judicial intervention—meaning the possibility that their employees might purchase emergency birth control does not directly affect the conscience of the company’s owners. (Emphasis added.)
In Citizens United, the Supreme Court held, in an opinion by Mr. Justice Kennedy, that corporations and unions are composed of and controlled by people and enjoy First Amendment rights of free speech comparable to those of people.
Because speech is an essential mechanism of democracy–it is the means to hold officials accountable to the people–political speech must prevail against laws that would suppress it by design or inadvertence. Laws burdening such speech are subject to strict scrutiny, which requires the Government to prove that the restriction “furthers a compelling interest and is narrowly tailored to achieve that interest.” WRTL, 551 U. S.,at 464. This language provides a sufficient framework for protecting the interests in this case. Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints or to distinguish among different speakers, which may be a means to control content. The Government may also commit a constitutional wrong when by law it identifies certain preferred speakers. There is no basis for the proposition that, in the political speech context, the Government may impose restrictions on certain disfavored speakers. Both history and logic lead to this conclusion. Pp. 20-25. (Emphasis added.)
Chief Justice Roberts concurred, stating
The Government urges us in this case to uphold a direct prohibition on political speech. It asks us to embrace a theory of the First Amendment that would allow censorship not only of television and radio broadcasts, but of pamphlets, posters, the Internet, and virtually any other medium that corporations and unions might find useful in expressing their views on matters of public concern. Its theory, if accepted, would empower the Government to prohibit newspapers from running editorials or opinion pieces supporting or opposing candidates for office, so long as the newspapers were owned by corporations–as the major ones are. First Amendment rights could be confined to individuals, subverting the vibrant public discourse that is at the foundation of our democracy. (Emphasis added.)
. . . .
The First Amendment protects more than just the individual on a soapbox and the lonely pamphleteer.
Does it also protect more than just recognized religious organizations? Mr. Justice Kennedy was born on July 23, 1936 and may not be around when the Liberty University or Holly Hobby cases reach the Court. If he is, might he modify his language quoted above to say the following, keeping in mind that free exercise of religion and free speech are guaranteed by the same First Amendment?
Laws burdening the free exercise of religion are subject to strict scrutiny, which requires the Government to prove that the restriction “furthers a compelling interest and is narrowly tailored to achieve that interest.”
Is there a constitutionally recognized Federal interest in requiring employers to subsidize their employees’ abortifacients? Is it sufficiently compelling to overcome expressly stated religious exercise rights under the First Amendment?
Other Judicial Fiddling
Many judicial interpretations have resulted from fiddling with the Constitution beyond the Bill of Rights. Those interpretations have lately been based generally on excessive deference to the Legislative and Executive Branches, grounded in the separation of powers doctrine, a valid and important doctrine but easily abused. Those interpretations have often been based on the notion that if a statute can be saved from unconstitutionality by convenient interpretations — of the statute, of the Constitution or of judicial precedent — that must be done. Chief Justice Roberts’ opinion upholding ObamaCare characterized the insurance mandate enforcement mechanism as a “tax” — rather than a “penalty” as Congress had characterized it (to have called it a tax would have been politically undesirable) — in order to avoid even the modest limitations now recognized to be imposed by the Commerce Clause of Article I, Section 8 of the Constitution. He acknowledged that reliance on the Commerce Clause would have killed the insurance mandate and, along with it, most or all of ObamaCare. The Chief Justice’s explanation here provides a useful example of that type of interpretation:
The question is not whether that is the most natural interpretation of the mandate,but only whether it is a “fairly possible” one . . . . The Government asks us to interpret the mandate as imposing a tax, if it would otherwise violate the Constitution. Granting the Act the full measure of deference owed to federal statutes, it can be so read . . . . (Emphasis added.)
How does one quantify the differences among “fairly possible,” “barely possible” and “possible” as in “anything is possible”? I don’t know and the decision provides no useful guidance.
I contended in this analysis of the ObamaCare decision that
The authority to tax — the power to destroy — gives the Congress tremendous power to do stupid as well as wise things. Let’s consider a not very farfetched example. Suppose the Congress were to increase the income tax rate by fifty percent for all eligible citizens who fail to vote in a specified Federal election; voting is good and should therefore be encouraged. Perhaps fifty percent is too much; how about ten percent? As to ObamaCare, the Court said, “we need not here decide the precise point at which an exaction becomes so punitive that the taxing power does not authorize it.” It would, therefore, be up to the Congress to decide how high is too high and (only maybe) for the Court later to second guess it. That provides slim comfort at best. The Congress could probably accomplish much the same thing by decreasing the tax rate, providing tax credits or tax deductions in whatever amount it might wish for those who do vote, so why should it be unable to increase as much as it might wish the taxes of those who don’t vote? Based on the Court’s decision, a distinction is far from obvious. (Emphasis added.)
Roberts’s decision limits Congress’s latitude by holding that the small size of the penalty is part of the reason it is, for constitutional purposes, a tax. It is not a “financial punishment” [for mandate noncompliance as would be a penalty] because it is not so steep that it effectively prohibits the choice of paying it. And, Roberts noted, “by statute, it can never be more.” As Lambert says, the penalty for refusing to purchase insurance counts as a tax only if it remains so small as to be largely ineffective. (Emphasis added.)
Mr. Will also observes,
Because the penalties are constitutionally limited by the reasoning whereby Roberts declared them taxes, he may have saved the ACA’s constitutionality by sacrificing its feasibility. So as the president begins his second term, the signature achievement of his first term looks remarkably rickety.
Comforting, but not realistic. Perhaps the Hobby Lobby case will offer some guidance. Is $1.3 million per day excessively punitive or merely “reasonable?” Reasonableness is often subjective and answers to such questions as “how high is too high” often are as well. In view of the judicial propensity toward deference to the Legislative Branch, I would not rely on Mr. Will’s analysis. I suppose we will just have to wait until the Court has another
penalty tax to evaluate.
The country is massively divided along such fault lines as race, ethnic background, perceived economic status, ideology and religion. We have a foundering educational system largely based on Federal dictates. It is prone to progressive indoctrination on what to believe rather than on how to reason and to think and on inculcating “progressive” ideology rather than teaching such trivia as mathematics and English grammar. The “history” it teaches is grossly distorted along “progressives lines.” Increasing numbers of people are blissfully dependent on Government for their sustenance and other free stuff and the mass media too often serve as cheerleaders for President Obama rather than as journalists. In these circumstances, what non-Article V changes to our Constitution should be expect over the next four years?
The future appears good only if viewed in a foggy and rose tinted crystal ball. Despite all of this, it is time to get to work (now) rather than to give up hope. I hope.
Mr. Whittle presents a good case. Allen West now has a regular gig at PJTV and Herman Cain has taken over Neil Boortz’ syndicated talk radio show. But how will they reach those who don’t care about the nation’s future and won’t as long as it provides for them? I wish I knew.
First published at Dan Miller’s blog.
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