Cakes and Liberty

Mark David Hall yesterday posted “Phillips Likely to Win Masterpiece Cakeshop Case, Five Votes to Four” at Law & Liberty. I fervently hope that Phillips wins, and by a greater margin than 5-4 (though that’s probably too much to hope for).

I must say, however, that I do not much care for the First-Amendment grounding of Phillips’s case. As Hall points out, Phillips was found guilty of violating Colorado’s public accommodation statute by the state’s Civil Rights Commission when he refused to provide a cake for a same-sex wedding.

And therein lies the real injustice, which stems from the Civil Rights Act of 1964. That law (among several things) prohibits racial discrimination in “public accommodations“, which are

generally defined as facilities, both public and private, used by the public. Examples include retail stores, rental establishments and service establishments as well as educational institutions, recreational facilities, and service centers.

What is going on with Masterpiece Cakeshop, and similar cases involving florists and photographers, is what has been going on since the enactment of the Civil Rights Act of 1964 and the U.S. Supreme Court’s subsequent rulings to uphold the law: the abrogation of property rights, liberty of contract, and freedom of association.

The only excuse for pursing Phillips’s cause as a First Amendment issue is that it is far too late to restore property rights, liberty of contract, and freedom of association — all of which have been smothered by the dense web of legislative, executive, and judicial decrees that suppresses liberty in the name of liberty.

Freedom of speech and freedom of religion are hanging on by the barest of threads. If Phillips loses in the Supreme Court, they will go the way of property rights, liberty of contract, and freedom of association.

Related posts:
Substantive Due Process, Liberty of Contract, and the States’ Police Power
The Constitution: Original Meaning, Corruption, and Restoration
Our Perfect, Perfect Constitution
Restoring Constitutional Government: The Way Ahead
“We the People” and Big Government
Getting “Equal Protection” Right
The Writing on the Wall
How to Protect Property Rights and Freedom of Association and Expression
The Principles of Actionable Harm
Judicial Supremacy: Judicial Tyranny
The Beginning of the End of Liberty in America
Substantive Due Process, Liberty of Contract, and States’ “Police Power”
Why Liberty of Contract Matters
The Answer to Judicial Supremacy
There’s More to It Than Religious Liberty
Turning Points
Equal Protection in Principle and Practice
Freedom of Speech and the Long War for Constitutional Governance
Academic Freedom, Freedom of Speech, and the Demise of Civility

Wrong for the Wrong Reasons

When in search of provocative material, I often flip through the pages of The Great Quotations — a left-slanted tome compiled by the late and long-lived George Seldes. Today, I came across this:

Overthrow of the Government by force and violence is certainly a substantial enough interest for the Government to limit speech. Indeed, this is the ultimate value of any society, for if a society cannot protect its very structure from armed internal attack, it must follow that no subordinate value can be protected.

That’s from Chief Justice Fred M. Vinson’s majority opinion in Dennis v. United States (1951). Here’s an outline of the case and its aftermath, as given at Wikipedia:

In 1948, eleven Communist Party leaders were convicted of advocating the violent overthrow of the U.S. government and for the violation of several points of the Smith Act. The party members who had been petitioning for socialist reforms claimed that the act violated their First Amendment rights to freedom of speech and that they served no clear and present danger to the nation….

[In the original trial] Prosecutor John McGohey did not assert that the defendants had a specific plan to violently overthrow the U.S. government, but rather alleged that the CPUSA’s philosophy generally advocated the violent overthrow of governments.[7] To prove this, the prosecution proffered articles, pamphlets and books (such as The Communist Manifesto) written by authors such as Karl Marx and Joseph Stalin.[8] The prosecution argued that the texts advocated violent revolution, and that by adopting the texts as their political foundation, the defendants were also personally guilty of advocating violent overthrow of the government.[9]

Petitioners were found guilty by the trial court and the decision was affirmed by the Second Circuit Court of Appeals. The Supreme Court granted writ of certiorari, but limited it to whether section two or three of the Smith Act violated the First Amendment and whether the same two sections violated the First and Fifth Amendments because of indefiniteness….

Handed down as a 6-2 decision by the Court on June 4, 1951, the judgment and a plurality opinion was delivered by Chief Justice of the United States Fred M. Vinson, who was joined by Justices Stanley Forman Reed, Sherman Minton, and Harold H. Burton. Separate concurring opinions were delivered by Justices Felix Frankfurter and Robert H. Jackson. Justices Hugo Black and William O. Douglas wrote separate dissenting opinions. Justice Tom C. Clark did not participate in this case.

The Court rule affirmed the conviction of the petitioner, a leader of the Communist Party in the United States. Dennis had been convicted of conspiring and organizing for the overthrow and destruction of the United States government by force and violence under provisions of the Smith Act. In affirming the conviction, a plurality of the Court adopted Judge Learned Hand’s formulation of the clear and probable danger test, an adaptation of the clear and present danger test:

In each case [courts] must ask whether the gravity of the “evil,” discounted by its improbability, justifies such invasion of free speech as necessary to avoid the danger….

[I]n 1969, Brandenburg v. Ohio held that “mere advocacy” of violence was per se protected speech. Brandenburg was a de facto overruling of Dennis, defining the bar for constitutionally unprotected speech to be incitement to “imminent lawless action”.[20]

This is from Wikipedia‘s account of Brandenburg v. Ohio:

The Court held that government cannot punish inflammatory speech unless that speech is directed to inciting, and is likely to incite, imminent lawless action.[1]

Brandenburg completely did away with Denniss central holding and held that “mere advocacy” of any doctrine, including one that assumed the necessity of violence or law violation, was per se protected speech.

And this is from the final paragraph of the Court’s ruling in Brandenburg:

[W]e are here confronted with a statute which, by its own words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action. 4 Such a statute falls within the condemnation of the First and Fourteenth Amendments.

So, in effect (though not in so many words), the Brandenburg Court found the Dennis Court to be wrong. Not wrong about the wrongness of overthrowing the government, just wrong about when the wrongness may be prosecuted. The Dennis Court was prematurely protective.

To put it another way, it’s all right to advocate wrong-doing, as long as the advocacy doesn’t lead directly to the wrong-doing.

Well, the Dennis Court may have been wrong, but not for the reason cited by the Brandenburg Court, which is also wrong. Why? Because it invites endless hair-splitting about the point at which advocacy translates to action. If the action being advocated is wrong, isn’t it also wrong — constitutional niceties aside — to advocate the action? I’m certainly not advocating thought-crime prosecution, but I am not satisfied with the Brandenburg Court’s conclusion.

If the purpose of the United States, as originally constituted, was to foster liberty, why should the government of the United States tolerate the promulgation of anti-libertarian views? Freedom of speech, after all, is just one manifestation of liberty. And that manifestation could vanish, with the rest, under an anti-libertarian regime.

Here’s the counter-argument: If government is allowed to suppress speech that promulgates the overthrow of America’s constitutional values in favor of anti-libertarian ones (e.g., communism), couldn’t the government then suppress speech that might have a tenuous connection with the idea of overthrowing America’s constitutional values? Government could, for example, suppress speech that proposes the establishment of a socialistic scheme that isn’t contemplated in the Constitution, such as Social Security. And if government could suppress speech of that kind, it could also suppress speech aimed at amending the Constitution to legalize socialistic schemes.

That wouldn’t be so bad, but the power to suppress speech is easily adapted to anti-libertarian uses. Untoward speech and thoughts about “protected groups” could be outlawed. Oops! Such speech and thoughts have been outlawed. “Hate thoughts” may be inferred as the unspoken motivation for a crime, given the personal characteristics of the (supposed) victim of the crime.

By now, you may have concluded that the problem isn’t the Constitution, it’s government. Or, more concretely, the persons and groups who are able to command the power of government. No piece of paper can protect liberty from the anti-libertarian machinations of government officials and the voting blocs to which they are beholden.

Which brings me back to the quotation at the beginning of this post, Chief Justice Vinson’s muddled rationale for the Supreme Court’s holding in Dennis v. United States:

Overthrow of the Government by force and violence is certainly a substantial enough interest for the Government to limit speech. Indeed, this is the ultimate value of any society, for if a society cannot protect its very structure from armed internal attack, it must follow that no subordinate value can be protected.

Government is not society. Nor does the United States comprise a single society, but rather multitudes of societies and interest groups: some desirous of liberty, others desirous of domination. The latter have prevailed, and have come to dominate those that desire liberty. Accordingly, “subordinate” values (e.g., free speech, property rights, and freedom of association) have not been protected by government.

Government, as it now stands, is unworthy of protection by the friends of liberty. In fact, it is (or should be) in need of protection from the friends of liberty. And may they prevail.

*     *     *

Related posts:
An Agenda for the Supreme Court
Liberals and the Rule of Law
The Slippery Slope of Constitutional Revisionism
A Hypothetical Question
The Real Constitution and Civil Disobedience
A Declaration of Independence
First Principles
Zones of Liberty
The Constitution: Original Meaning, Corruption, and Restoration
A Declaration of Civil Disobedience
Rethinking the Constitution: “Freedom of Speech, and of the Press”
Society and the State
Our Perfect, Perfect Constitution
Reclaiming Liberty throughout the Land
A New Constitution for a New Republic
Restoring Constitutional Government: The Way Ahead
“We the People” and Big Government
How Libertarians Ought to Think about the Constitution

The Contemporary Meaning of the Bill of Rights: First Amendment (Updated)

I have twice updated “The Contemporary Meaning of the Bill of Rights: First Amendment.” Today’s second update  addresses certain issues noted in “Mandating Our Religious Freedom,” a recent post at Public Discourse, specifically:

The Founders’ protection of religious freedom in the First Amendment was in keeping with their recognition of the supreme importance of the individual, who was created by God and subject to God’s natural law. The early twentieth-century Progressives largely rejected this view, as they concluded that man must not be limited by “arbitrary” rules such as those imposed by religion. Modern progressives have seized upon this viewpoint, especially in their attitudes toward sex. The State will teach children about sex, and it will do so by disconnecting it from its most important component—the spiritual. It does not matter that such teachings are, by nature, within the rights of parents.

Progressives have carried these attitudes to federal, state, and local governments, and the result has been an unprecedented assault on religious values and religious practice. Governmental authorities embrace the view that access to contraception (and abortion) is a fundamental right vital to sexual freedom. Similarly, homosexual conduct must be completely normalized and accepted. The law must prohibit even private preference for heterosexual norms, and if religion teaches such a preference, religion must yield. These attitudes must be taught to children in the public schools in order to affirm, in the state’s view, the full self-realization of every person—and as shown below, parents who object to the assault on their right to bring up their children according to their religious values have discovered that the courts will not protect their rights in this regard.

Churches and other people of faith have relied on the judicial process to protect their First Amendment freedoms. But litigation takes an enormous toll in time and resources. Even worse, as many disappointed litigants have discovered, courts grant extraordinary leeway to government and government schools in advancing so-called neutral, generally applicable laws. The courts will follow the lead of the people in defining the parameters of religious liberty; if the people abdicate, the courts will not intercede to protect that liberty.

The problem lies in a 1990 Supreme Court case, Employment Division v. Smith, in which the Court held that the First Amendment does not relieve a citizen of the obligation to comply with a neutral law of general applicability, simply because the law “proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” Applying Smith, lower courts have rejected almost all challenges to laws and government activities that are based on claims of interference with free exercise of religion. Many of these cases arise in the public-school setting. Courts have found that public-school administrators do not interfere with parents’ First Amendment rights by:

Although older Supreme Court authority acknowledged the fundamental right of parents to control the upbringing and education of their children (Meyer v. Nebraska, Pierce v. Society of Sisters, Wisconsin v. Yoder), the post-Smith courts have severely limited those holdings to their unique facts. Now, courts are more likely to hold that parents relinquish, as a practical matter, their First Amendment right to control their children’s education when they choose public schools over private schools or homeschooling. As one court said, parents “have no constitutional right . . . to prevent a public school from providing its students with whatever information it wishes to provide, sexual or otherwise, when and as the school determines that it is appropriate to do so.”

The first update (on 11/18/11) addresses these aspects of “Mandating Our Religious Freedom”:

The denigration of religious freedom extends to areas of purely private, commercial conduct. Governments increasingly apply nondiscrimination statutes to force private individuals and businesses to participate in conduct that violates their religious beliefs. So far, defenses based on the First Amendment have been unavailing. Some examples:

  • The New Mexico Human Rights Commission found that a small photography business unlawfully discriminated against a same-sex couple by declining, because of the owners’ religious beliefs, to photograph the couple’s commitment ceremony (Willock v. Elane Photography).
  • The California Supreme Court ruled that doctors violated the state nondiscrimination statute by refusing, on religious grounds, to artificially inseminate a woman who was in a lesbian relationship (North Coast Women’s Care Medical Group v. San Diego County Superior Court).
  • A federal court in California found that administrators of an Arizona adoption-facilitation website were subject to California’s statute banning discrimination in public accommodations because they refused to post profiles of same-sex couples as potential parents (Butler v. Adoption Media).
  • A New Jersey agency found probable cause to believe that a church violated a public-accommodations statute by declining to rent its pavilion for a same-sex wedding (a different agency, enforcing nondiscrimination on the basis of sexual orientation, revoked the tax exemption the church had enjoyed under a statute promoting the use of private property as green space) (Ocean Grove Camp Meeting Ass’n of United Methodist Church v. Vespa-Papaleo).
  • A federal appeals court found that an employer’s denial of insurance coverage to an employee’s same-sex partner constituted illegal sex discrimination (In Re Levenson)….

Another arena in which principles of nondiscrimination are elevated over free exercise of religion is the area of public benefits. Across the country, faith-based charities or social-service organizations such as the Salvation Army and the Boy Scouts have been denied government grants or other benefits because of their religiously grounded refusal to yield to the demands of “nondiscrimination” (see, for example, Boy Scouts of America v. Wyman, Catholic Charities of Maine, Inc. v. City of Portland). These demands have included providing insurance benefits to employees’ same-sex partners, admitting homosexuals to the organizations’ leadership ranks, and placing children with same-sex adoptive parents. This latter demand has forced Catholic agencies to cease adoption facilitations in Massachusetts, Illinois, and the District of Columbia rather than violate their religious beliefs about marriage and the family.

Other victims of progressive attitudes toward sexuality and “discrimination” have been public employees who express their religiously based concerns about homosexual conduct. A Los Angeles police officer who was also a Protestant minister was demoted and, he says, denied benefits because of a sermon he delivered that quoted biblical passages about prohibited sexual conduct. An African-American college administrator was fired after she published an op-ed objecting to the equating of race discrimination and sexual-orientation discrimination. And most recently, a New Jersey teacher has come under verbal assault—including from Gov. Chris Christie, who also called for an investigation of her classroom behavior—for posting on her Facebook page her moral objections to a high school’s Lesbian Gay Bisexual Transgender History Month display.

The hostility of courts to such claims of First Amendment violations is unlikely to change, especially in light of the governmental officials’ gravitation toward the European attitude about religion—that it is a divisive influence that must be contained and marginalized. As jurists and legal scholars flirt with the idea of consulting foreign law to evaluate claims under our Constitution, this attitude could take deeper root in American soil.

Progressive to the core, the Obama administration is pursuing even more limitations on religious freedom. One such effort is the proposed mandate of the Department of Health and Human Services (HHS) that health plans cover contraceptives and sterilization, with a religious “exemption” so narrow that (as the U.S. Conference of Catholic Bishops has noted) it would not have covered the ministry of Jesus Christ. Another is the Administration’s argument in a case currently before the Supreme Court that the long-established “ministerial exception” to federal employment-discrimination laws be abandoned. This would mean that rather than allow churches to select and control their own ministers, the federal government could dictate results more in keeping with its secular values. Churches have seen this kind of thing before, and it has not ended well.

I doubt that Thomas Jefferson had this in mind when he proclaimed, wrongly, that the First Amendment built “a wall of separation between Church & State.”

The Contemporary Meaning of the Bill of Rights: First Amendment

UPDATED 11/18/11 and 11/30/11

Although there was, in the early days of the Republic, some misunderstanding about the applicability of the Bill of Rights — whether it bound only the central government or the States as well — that misunderstanding was resolved, finally, by Chief Justice John Marshall, in Barron v. Mayor & City Council of Baltimore (1833). Marshall held that the Bill of Rights applied only to the central government. Marshall’s holding should have been undone by the “privileges and immunities” clause of the Fourteenth Amendment (1868), which was meant to enforce the first eight amendments of the Bill of Rights against the States. (The final two amendments of the Bill of Rights directly address the States and do not require “incorporation.”) That the Supreme Court has nevertheless seen fit to incorporate the Bill of Rights piecemeal and incompletely is a case of judicial error or misfeasance, as you wish.

In any event, the meaning of the Bill of Rights has evolved and shifted with time, not always for the better. What  follows, in this and subsequent posts, is my take on the original meaning of the Bill of Rights, stated in modern language and addressed to contemporary issues. The constitutional text is in italics. My version is in bold. [11/18/11: An addition to the first paragraph of my version is in bold italics.] [11/30/11: A second addition to the first paragraph of my version is in underlined bold italics.]

Amendment I

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.

No government of or in the United States may establish an official religion or, by any act, favor a particular religion, sect, or cult. The expression of religious views by a member, officer, employee, or agent of a governmental body, acting as such, is not an establishment of religion. Nor is the verbal or tangible observance of a religious holiday by such persons an establishment of religion, as long as no one is compelled to join the observance. Except to enforce the preceding provisions, no governmental body of or in the United States may interfere with the peaceful observance of religion or with the peaceful expression of religious views, in verbal or tangible form. Nor may any governmental body of or in the United States compel any person or private entity to perform an act that is contrary to the person’s religious beliefs or the beliefs espoused by the private entity, either directly or by threatening or causing the loss or diminution of a person’s employment or a private entity’s patronage, revenues, profits, or existence. Further, no governmental body may compel a minor to attend or participate in a lesson or activity that conflicts with the religious beliefs of the minor and/or his parent(s) or guardian(s); nor shall a minor or his parent(s) or guardian(s) be penalized in any way for a refusal to participate in any such lesson or activity.

“Speech” is the transmission of ideas. The curtailment of “speech” is an affront to liberty and can hinder the people’s betterment. Subversive “speech” that foments or abets treason, insurrection, rebellion, or crime should be dealt with under one of those headings.

Profanity and obscenity are not “speech,” and therefore do not merit protection; ideas can be conveyed without the use of profanity and obscenity. The people, through their State and local governments, may legislate against profanity and obscenity, and the interstate transmission of profanity and obscenity shall be regulated by the laws of the jurisdictions whose citizens are recipients of a transmission, by any medium. The role of the central government in such matters shall be restricted to the judicial determination of the reasonableness of any restriction on the transmission of profanity and obscenity.

“Speech” may not be barred, regulated, or penalized merely because it might be or is deemed objectionable by other persons or category of persons. This provision applies not only to governments of and in the United States but also to institutions of learning that operate under the aegis of such governments.

The emissions of the press, in whatever medium, are merely an aspect of “speech.” The press enjoys no special rights  of “speech” over and above those enjoyed by the people at large.

Prior restraint of “speech,” regardless of its source, is potentially dangerous to liberty and should not be undertaken lightly. But — given due process of law — such restraint may be exercised by a government of or in the United States for the purpose of preventing a particular act of treason, insurrection, or rebellion, or a crime that would take place absent the restraint.

No government of or in the United States may bar, disrupt, or dissolve any peaceful assembly on private property, as long as the owner of the property assents to the assembly. If the owner does not assent, the government with jurisdiction shall enforce the owner’s property rights. An assembly on public property is deemed not peaceful if causes or contributes to a breakdown of public order,  or if it prevents the use of that property for its intended purposes. In any event, no government shall allow an assembly on public property to continue for more than 24 hours if it requires the government to incur expenses over and above a normal amount, unless financial responsible parties assure the reimbursement of such expenses. A government shall bar, disrupt, or dissolve any assembly within its jurisdiction if it is not peaceful or if there is a reasonable expectation that reimbursement, if required, will not be made.

*   *   *

The final paragraph might seem unduly restrictive, but in this age of instant communication and intellectual “flash mobs,” public demonstrations are not much more than ego-trips that impose costs and inconveniences on hard-working taxpayers.

To be continued…

Related posts: IV. The Constitution: Original Meaning, Subversion, and Restoration, at “Favorite Posts

Cuccinelli for President?

The more I learn about Ken Cuccinelli, the attorney general of Virginia, the more depressed I become by the fact that he — or someone like him — isn’t in the White House.

For example, Cuccinelli’s office is investigating Michael “Hockey Stick” Mann, who (while at the University of Virginia) accepted State funds for his research. Here is part of the AG’s statement about the matter:

The revelations of Climate-gate indicate that some climate data may have been deliberately manipulated to arrive at pre-set conclusions.  The use of manipulated data to apply for taxpayer-funded research grants in Virginia is potentially fraud.  Given this, the only prudent thing to do was to look into it.

This is a fraud investigation and the attorney general’s office is not investigating Dr. Mann’s scientific conclusions.  The legal standards for the misuse of taxpayer dollars apply the same at universities as they do at any other agency of state government.  This is about rooting out possible fraud and not about infringing upon academic freedom.

That bare statement cries out for amplification. Here are portions of an analysis posted at Watt’s Up With That?:

Mann is the former UVA professor, whose “hockey stick” temperature chart was used to promote claims that “sudden” and “unprecedented” manmade global warming “threatens” human civilization and Earth itself. The hockey stick was first broken by climatologists Willie Soon and Sallie Baliunas, who demonstrated that a Medieval Warm Period and Little Ice Age were clearly reflected in historic data across the globe, but redacted by Mann. Analysts Steve McIntyre and Ross McKitrick later showed that Mann’s computer program generated hockey-stick patterns regardless of what numbers were fed into it – even random telephone numbers; that explained why the global warming and cooling of the last millennium magically disappeared in Mann’s “temperature reconstruction.”

The Climategate emails revealed another deliberate “trick” that Mann used to generate a late twentieth-century temperature jump: he replaced tree ring data with thermometer measurements at the point in his timeline when the tree data no longer fit his climate disaster thesis.

Not surprisingly, he refused to share his data, computer codes and methodologies with skeptical scientists. Perhaps worse, Climategate emails indicate that Mann and others conspired to co-opt and corrupt the very scientific process that Carr asserts will ultimately condemn or vindicate them.

This behavior certainly gives Cuccinelli “probable cause” for launching an investigation. As the AG notes, “The same legal standards for fraud apply to the academic setting that apply elsewhere. The same rule of law, the same objective fact-finding process, will take place.” Some witch hunt.

There is simply no room in science, academia or public policy for manipulation, falsification or fraud. Academic freedom does not confer a right to engage in such practices, and both attorneys general and research institutions have a duty to root them out, especially in the case of climate change research.

Then there is Virginia’s suit for “declaratory and injunctive relief” from Obamacare. Cuccinelli’s office recently responded to the feds’ motion to quash the suit. Here is the AG’s statement:

Virginia has responded to the federal government’s attempt to dismiss the state’s lawsuit against the new federal health care law, Virginia Attorney General Ken Cuccinelli announced today.

In its motion to the court to dismiss Virginia’s lawsuit, the federal government argued that Virginia lacks the standing to bring a suit, that the suit is premature, and that the federal government has the power under the U.S. Constitution’s Commerce Clause to mandate that citizens must be covered by health insurance or pay a civil penalty.  The government also made alternative arguments based upon its taxing power and the Necessary and Proper Clause.

“If the government prevails and Congress may use the Commerce Clause to order Americans to buy private health insurance, then Congress will have been granted a virtually unlimited power to order you to buy anything.  That would amount to the end of federalism and our more than 220 years of constitutional government,” the attorney general said.

Here is a brief summary of some of the arguments:

Federal government’s arguments to dismiss the case

Virginia’s response

Virginia is not injured by the federal health care law

Because the federal health care law purports to invalidate a Virginia law (the Health Care Freedom Act) under the Constitution’s Supremacy Clause, Virginia’s sovereign interests have been injured.

Because the mandate doesn’t take effect until 2014, the case is not “ripe”

1)  Based on several previous Supreme Court decisions, if a dispute is certain to occur in the future, this does not prohibit the suit from being brought in the present

2)  Virginia has already been forced to make decisions regarding insurance exchanges under the act, as well as changes to Medicaid.  One of those decisions made the commonwealth forego more than $100 million in federal money.

Virginia’s suit is barred by the Anti-Injunction Act

The act does not apply to states under these circumstances, because Virginia’s action falls within an exception to the act that has been recognized by the Supreme Court

The government has the power under the Constitution’s Commerce Clause to mandate the purchase of individual health insurance

1)  The federal government’s argument is contrary to the text of the Constitution

2)  The federal government’s argument is contrary to the meaning of the words of the Commerce Clause as understood by the Founders

3)  The federal government’s argument is contrary to the historical context of the nation’s founding.  When Great Britain instituted a tax on tea, the colonists’ response was to boycott and to not buy tea.  Parliament had the power to regulate commerce, but even it did not attempt to force colonists to buy the taxed product.

4)  The federal government’s argument is contrary to the traditional uses of the Commerce Clause.  The clause has always been used to regulate economic activity; never inactivity.

5)  The federal government’s argument is contrary to the precedent of the U.S. Supreme Court.  The Court has set outer limits to the reaches of the Commerce Clause, including in cases such as Lopez and Morrison, saying that the clause must have principled limits, otherwise the federal government essentially would have unlimited power, rather than the limited powers enumerated in the Constitution.

Even if refusing to buy insurance is not commerce, the government can still force people to buy health insurance using the Constitution’s Necessary and Proper Clause.

1)  Since 1819, the Supreme Court has held that any use of the Necessary and Proper Clause must be consistent with both “the letter and spirit” of the Constitution.  Any interpretation that would destroy the federal form of government (where federal power is limited only to those powers enumerated in the Constitution, with remaining powers reserved to the states and the people) is not allowed under that standard.

2)  In May, the Supreme Court decided Comstock.

The Court adopted a historical approach to the use of the Necessary and Proper Clause. Because the mandate is utterly unprecedented, it is unlikely to be upheld under a historical approach.

Even if the government cannot win using the Commerce Clause and Necessary and Proper Clause arguments, the federal health insurance mandate can be justified under the government’s taxing authority.

1)  The penalty for not buying insurance is not a tax.  Congress called it a “penalty” and claimed authority to act only under the Commerce Clause.  To argue otherwise now ignores what Congress actually did.

2)  A penalty for inaction is not a tax of any kind known to the Constitution, when judged historically.

Finally, for today, there is Cuccinelli’s principled defense of the First Amendment in the case of Snyder v. Phelps. Here is the text of the press release that explains his refusal to join a case filed by the AGs of 48 other States:

Attorney General Ken Cuccinelli has decided not to join other states in an amicus brief on behalf of Albert Snyder in Snyder v. Phelps, which will soon be heard by the U.S. Supreme Court.  Mr. Snyder is the father of Matthew Snyder, a soldier killed in Iraq whose funeral was picketed by Fred Phelps and his followers at the infamous Westboro Baptist Church.

Here is our statement, given by Brian Gottstein, director of communication:

The attorney general’s office deplores the absolutely vile and despicable acts of Fred Phelps and his followers.  We also greatly sympathize with the Snyder family and all families who have experienced the hatefulness of these people.  The attorney general has always been a strong supporter of the military, both in his words and in his work as a Senator.  But the consequences of this case had to be looked at beyond what would happen just to Phelps and his followers.

This office has decided not to file a brief in Snyder v. Phelps, because the case could set a precedent that could severely curtail certain valid exercises of free speech.  If protestors – whether political, civil rights, pro-life, or environmental – said something that offended the object of the protest to the point where that person felt damaged, the protestors could be sued.  It then becomes a very subjective and difficult determination as to when the line is crossed from severely offensive speech to that which inflicts emotional distress.  Several First Amendment scholars agree.

Virginia already has a statute that we believe balances free speech rights while stopping and even jailing those who would be so contemptible as to disrupt funeral or memorial services.  That statute, 18.2-415(B), punishes as a class one misdemeanor (up to one year in jail and a fine of up to $2,500) someone who willfully disrupts a funeral or memorial service to the point of preventing or interfering with the orderly conduct of the event.

We do not think that regulation of speech through vague common law torts like intentional infliction of emotional distress strikes the proper balance between free speech and avoiding the unconscionable disruption of funerals.  We think our statute does.

So long as the protesters stay within the letter of the law, the Constitution protects their right to express their views.  In Virginia, if Phelps or others attempt this repugnant behavior, cross the line and violate the law, the attorney general’s office stands ready to provide any assistance to local prosecutors to vindicate the law.

A politician who stands on principle instead of bowing to popular outrage. How refreshing. How unusual.

Cuccinelli for President? Sounds good to me, but if you follow the first link in this post you will learn that Cuccinelli’s views on many issues would cause Democrats to unleash a latter-day anti-Goldwater scare campaign. Given the present mood of the country, however, Ken Cuccinelli could be just the right man for the times.