Violating the Constitution that created it

The political left’s responses to Donald Trump’s surprise Electoral College victory has led to many proposed “improvements” in that institution, ironically illustrating one of the main issues determining the outcome — what philosophy would guide judicial appointments.

Trump indicated that he would appoint justices that would honor the Constitution as the supreme law of the land. That would comport with our founders, expressed in Federalist 78, that “It will be the duty of the judicial tribunals … to guard the Constitution and the rights of individuals.” That was at odds with Hillary Clinton’s intent to appoint “living Constitution” jurists, who prefer subsequent judicial interpretations they like over the Constitution itself, whenever they conflict, effectively re-writing the Constitution.

So left-leaning legal scholars have illustrated their preferred means of Constitutional redefinition to produce their desired results via Electoral College “reform” proposals.

Kenneth Jost, author of the Supreme Court Yearbook, argues, “The electoral college is enshrined in the Constitution, but that doesn’t make it constitutional.” He arrives at that internally inconsistent conclusion because “The Supreme Court established the principle — ‘one person, one vote’ — in 1964.” But that is not in the Constitution. It is a much later court invention, now being used retroactively to define part of the Constitution unconstitutional. The fact that our founders did not find that so when they wrote and adopted the Constitution is simply ignored.

University of California, Irvine, Law School Dean Erwin Chemerinsky, a leading liberal Constitutional interpreter, takes the same theme further. He argues that “the text of the Constitution is modified by its amendments,” so the Electoral College allocation of votes should be declared unconstitutional as violating the constitutional amendments [citing the 5th Amendment] that guarantee equal protection of the law.” This, despite the fact that adopters of the Bill of Rights in 1791 clearly found no unconstitutionality in the Electoral College from the 5th Amendment. Neither were earlier examples of popular vote winners who lost in the Electoral College asserted to be unconstitutional. Chemerinsky, as Jost, builds his case not on the Constitution, but upon “The Supreme Court long has held,” followed by some ruling that twists the Constitution and can now be interpreted as at odds with the Electoral College, plus the claim that the redefined constitutional meaning should now trump the Constitution.

Neither of these prominent challenges to the Electoral College relies on the Constitution. Arguments are instead grounded in previous “The Supreme Court has held” rulings that deviated from consistency with the clearly understood original meaning of the Constitution. This is, in fact, such a common approach in “living Constitution” jurisprudence that scholars have even compiled “worst of” lists, such as Robert Levy and William Mellor’s The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom.

Should America be faithful to the Constitution, and the sharply limited federal government of enumerated powers it created to protect our freedoms from abuse at its hands, as the earlier, controlling precedent, or should we accept precedents that have already warped it almost beyond recognition? If the Constitution’s meaning is to be so easily changed (but only when the left finds it amenable to their ends) that even “emanations from penumbras” around other rights can effectively rewrite it, why did our founders spell out such a difficult process for changing it? And why should we respect precedents from 1964 or others years long after America’s establishment, on the basis that the Constitution must be upheld, when those precedents distorted it rather than upheld it? Surely that Alice in Wonderland approach to constitutional meaning is too weak a reed to throw out the Electoral College as violating the Constitution that created it.

Gary M. Galles is a Professor of Economics at Pepperdine University, a Research Fellow at the Independent Institute, an Adjunct Scholar at the Ludwig von Mises Institute and a member of the Foundation for Economic Education Faculty Network. His books include Lines of Liberty (2016), Faulty Premises, Faulty Policies (2014) and Apostle of Peace (2013).

Mainstream Misdirection in SCOTUS Search

 

Photo courtesy Envios, flickr

Photo courtesy Envios, flickr

Antonin Scalia’s death has begun a new Supreme Court battle. And much of it will be expressed in terms of whether nominees are “mainstream” or not.

Senator Charles Schumer already demonstrated this pattern. In 2007, he said any Bush nominee “must prove … that they are in the mainstream rather than we have to prove that they are not,” but has now doubled down in the opposite direction, saying, “many of the mainstream Republicans, when the president nominates a mainstream nominee, will not want to follow Mitch McConnell over the cliff.”

Why so much mainstream rhetoric? To be in it sounds good; to be out of it sounds bad. But it rests on a distorting analogy.

The analogy equates mainstream to “normal,” or majority, views. They are then further equated to “correct” views. But while majorities choose representatives, our Constitution was far from majority rule (“mob rule,” to many founders). It put many choices off-limits to political determination, and subjected others to very stringent standards. In short, it defended liberty against government encroachment. This is especially critical in evaluating justices, whose primary role is preserving the Constitution against majority abuses.

The analogy presumes a speaker’s mainstream evaluation is accurate. But where the mainstream is and how far from its supposed center is acceptable are indefinable.

The core issue is not, then, about being in the current mainstream, but where that mainstream should be. Advocating respecting the Constitution as written, as Scalia was famous for, focused on that.

That is, the mainstream may be in the wrong place. It has clearly changed in our country, but only because some were out of the previous mainstream. Men being created equal, with inalienable rights against government abuse, is far from the once mainstream belief in the divine right of kings. And our Bill of Rights freedoms to speak, write and worship as we choose, and to have our property protected from government predation, were not always mainstream.

Federalist 78, America’s most famous statement of the judiciary’s role, reveals that the political mainstream has indeed jumped its constitutionally enumerated banks, arguing for re-routing it toward its original course: “A limited Constitution…can be preserved in practice no other way than through…courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.”  Further, “whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter…to guard the Constitution and the rights of individuals.”

If the mainstream has moved from its original American course, only those now out of it can shift it back. For example, the now-common view that using government to rob Peter to pay Paul is acceptable means anyone acting to undo such policies would be outside today’s mainstream, though not that of our founders. As Jefferson said, “The majority, oppressing an individual, is guilty of a crime, abuses its strength, and…breaks up the foundations of society.”

In fact, “out of the mainstream” nominees are the only ones who might resist further expanding government encroachment or even reclaim eviscerated freedoms once taken for granted. In contrast, those recently advocated as mainstream have enabled “new and improved” encroachments.

Expanding the divide between the Constitution and current interpretation increasingly threatens our founders’ mainstream belief in liberty and the Constitution they designed to defend it. Consequently, advocates for the modern mainstream are opposing the mainstream that made America great. That is why Antonin Scalia fought vigorously for our founders’ understanding. It is also why Americans don’t need more justices from the modern mainstream, but more from its original channel.

Gary M. Galles is a Research Fellow at the Independent Institute and a Professor of Economics at Pepperdine University. His books include Lines of Liberty (2015), Faulty Premises, Faulty Policies (2014) and Apostle of Peace (2013).

Palo Alto Demands $8 Million To Allow Business to CLOSE

Mobile home parkDid several business-hostile politicians leave Sacramento to take over over the city of Palo Alto? Seems that way to me. After all, who else would demand that a family pay $8 million to close its business over issues that the family had nothing to do with?

“No one should be forced to carry on a business that they want to close,” said Larry Salzman, an attorney with the Pacific Legal Foundation, which has filed a federal lawsuit against the city because of its demand on the owners of a mobilehome park.

“The city is treating the Jisser [family] as an ATM to solve a problem they didn’t cause — the lack of affordable housing in Palo Alto. That’s not just wrong, it’s unconstitutional,” said Salzman.

“The way to make housing affordable in Palo Alto is to build more housing,” Salzman noted. “The city has for decades refused to permit enough housing to be built to meet the skyrocketing demand, and it is now shamefully scapegoating the Jissers for its own failure.”

Palo Alto is ground-zero for California’s affordable housing crisis, where the median home price is a blistering $2.46 million dollars (compared to $448,000 statewide and $180,000 in the U.S.). A May 2015, report by California’s Legislative Analyst Office blames the state’s high housing costs on overly restrictive land use policies, particularly in coastal cities like Palo Alto.

The PLF is representing the Jisser family (Tim, Eva, and their son, Joe) in the lawsuit challenging Palo Alto’s unconstitutional demand that the Jissers pay millions for the right to close their business. The PLF announcement reveals more about the situation:

The Jissers immigrated to Silicon Valley in the 1970s. They made their living running a small grocery store and saved their money to buy the Buena Vista mobilehome park in Palo Alto in 1986. Since then, the Jisser family’s mobilehome park has provided some of the most affordable housing in Palo Alto for more than 30 years.

At age 71, Tim Jisser would like to retire, but the family has been mired in a highly publicized and often acrimonious dispute for years over their right to withdraw the property from the rental market and close their business. Earlier this year, the city gave the Jissers permission to close their business, but only on the condition that they first pay approximately $8 million to their tenants. The payments include rent subsidies for alternative housing for the tenants and the outright purchase of all of the Jissers’ tenants’ mobilehomes at prices reflecting the acute housing shortage in Palo Alto.

In effect, the Jissers are being forced to remain landlords – and to accept the permanent occupation of their land by their tenants – unless they provide their tenants with enough money to ameliorate the city’s notoriously high cost of housing. But it is the city itself that has created the housing shortage that makes it all but impossible for young families and people of modest means to live there.

Palo Alto is ground zero for California’s affordable housing crisis. It is the city that has refused to allow enough homes to be built to meet the skyrocketing demand during the last several decades, which has resulted in high prices.

Represented by PLF pro bono, the Jissers’ case charges that Palo Alto’s staggering financial demand is an unconstitutional condition on the Jissers’ property rights and a violation of the U.S. Constitution’s Takings clause. The Supreme Court has repeatedly said that individual property owners should not be forced to pay for public benefits that, in fairness, should be borne by the public as a whole.

Earlier, the Jissers had put together a relocation package for the low-income tenants that the city through early 2015 deemed adequate.

“It was really shocking—and frustrating, to say the least—that it would cost in the several millions of dollars to get out of the rental business,” the owner’s son, Joe Jisser, said.

More details about the case can be read here.

he Irvine-based Principal of Spectrum Location Solutions helps companies plan and select ideal sites for new facilities across the U.S. and internationally.

This piece was originally published by Fox and Hounds Daily

Shocker: American College Students Don’t Know Squat About The Constitution

ConstitutionThe American public continues to show a staggering level of ignorance about the basic principles of America’s Constitution and government, according to a new survey put out by the American Council of Trustees and Alumni (ACTA).

ACTA, which promotes high standards and a core curriculum for college students, commissioned a survey of 383 college graduates nationwide and quizzed them on basic American civics via a series of multiple-choice. The result were, for the most part, appalling.

When asked to choose among a list of four people which was on the U.S. Supreme Court, only 62 percent correctly chose Elena Kagan, while 10 percent chose Judith Sheindlin, better known to most of America as Judge Judy. One third of respondents couldn’t correctly identify the Bill of Rights as a series of amendments to the Constitution, only 54 percent could correctly state the term lengths for U.S. senators and representatives, and 32 percent thought John Boehner was president of the Senate rather than speaker of the House.

On some questions, an incorrect answer even drew more support than the correct one. Fifty-nine percent of respondents labeled Thomas Jefferson the “Father of the Constitution” (he in fact played no role is its creation), while only 28 percent correctly assigned that title to James Madison. Forty-three percent believed that a constitutional amendment requires presidential approval, slightly above the 42 percent who correctly said an amendment requires approval from three-fourths of the states.

There were a handful of bright spots, though. Eighty-four percent correctly said the right to an education is not a part of the First Amendment, and a solid 66 percent knew that habeas corpus protects against unlawful imprisonment.

The survey was released to coincide with Constitution Day, set to be commemorated Sept. 17. ACTA president Anne Neal argued in a statement that low constitutional literacy isn’t just embarrassing, but a threat to genuine democracy.

“The findings are deeply troubling and underscore how our educational institutions are utterly failing to prepare our next leaders for citizenship,” Neal said. “In a republic which depends on an educated citizenry, it’s crucial that all Americans — especially college graduates — are fully familiar with the rights and responsibilities set out in the Constitution.”

ACTA’s goal in releasing the survey is to encourage a strengthening of U.S. civics education at the college level. The organization claims in its press release that only 18 percent of U.S. colleges require students to take a class in U.S. history or government in order to graduate.

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Strict SF Gun Laws Survive Challenge in Courts

GunContinuing its reticence to reach beyond a landmark decision seven years ago, the Supreme Court handed a victory to tight regulations on gun use in San Francisco.

Twin ordinances

“The court on Monday let stand court rulings in favor of a city measure that requires handgun owners to secure weapons in their homes by storing them in a locker, keeping them on their bodies or applying trigger locks,” the Associated Press reported. “A second ordinance bans the sale of ammunition that expands on impact, has ‘no sporting purpose’ and is commonly referred to as hollow-point bullets.” The first ordinance passed in 2007; the second, in 1994.

The NRA and gun rights advocates had expected that the court’s 2008 decision in the District of Columbia v. Heller gave them a strong chance at overcoming the regulations. “Gun owners challenged both ordinances after the U.S. Supreme Court ruled in 2008 that the Constitution guarantees the right to possess guns at home for self-defense, then ruled in 2010 that state and local laws that substantially burdened that right were invalid,” observed the San Francisco Chronicle. “Gun groups are also relying on those rulings to challenge California’s licensing requirements for concealed weapons, and ordinances in San Francisco and Sunnyvale that ban the possession of high-capacity gun magazines.”

Failure on appeal

As Bloomberg reported, plaintiffs were convinced “that the San Francisco law was similar to the Washington, D.C., trigger-lock requirement invalidated in the high court’s 2008 decision.” But the 9th Circuit Court of Appeal ruled against them, teeing up a showdown at the Supreme Court. “The Ninth Circuit Court held that the city had a legitimate purpose in applying laws that reduce the danger of guns,” Al Jazeera America recounted, “and that while it did burden the rights of gun owners, it didn’t burden them so much they couldn’t exercise the rights to self-defense enshrined in the Second Amendment.”

“‘The record contains ample evidence that storing handguns in a locked container reduces the risk of both accidental and intentional handgun-related deaths, including suicide,’ Circuit Judge Sandra S. Ikuta wrote in the court’s opinion in March of last year.”

Among Supreme Court Justices, however, only Antonin Scalia and Clarence Thomas signaled their willingness to take the case.

“In a six-page dissent, Thomas, joined by Scalia wrote that the San Francisco gun laws are ‘in serious tension with Heller‘ and that the prior court rulings had ‘failed to protect’ the Second Amendment,” National Public Radio noted. “San Francisco’s law allows residents to use their handguns for the purpose of self-defense, but it prohibits them from keeping those handguns operable for the purpose of immediate self-defense when not carried on the person,” according to Justice Thomas.

Mixed messages

Although some legal experts immediately noted that the court’s decision raised questions about just how much protection the Second Amendment now could afford, others noted the court’s recent decision to side with the NRA in a different case.

Just last month, the court drew acclaim from the NRA for its unanimous ruling that convicted felons could sell firearms confiscated by law enforcement.

“The decision came in response to a case involving former U.S. Border Patrol agent Tony Henderson,” Western Journalism reported, “whose 19 guns were confiscated by the FBI upon his arrest on drug charges.”

“Following his guilty plea, Henderson was a felon prohibited from possessing firearms; however, he did not want to simply lose the roughly $3,500 his gun collection was worth. He petitioned a lower court in an effort to allow a third party to take possession of the guns and attempt to sell them on his behalf. That effort was unsuccessful at every stage of appeal up to the Supreme Court level.”

Originally published by CalWatchdog.com

Judge Rules CA Inmate Entitled to Sex-Change Operation — With Taxpayer Money

What looked at first like a belated April Fool’s Day joke may turn out to be a landmark ruling in Eighth Amendment jurisprudence. On April 2, a federal district court judge in San Francisco ruled that a convicted murderer serving a 17-years-to-life sentence is entitled to a sex-change operation at taxpayer expense. Judge Jon Tigar, a Barack Obama appointee, determined that Jeffrey Bryan Norsworthy should have the $100,000 procedure “as promptly as possible.”

Though no inmate in a California prison has ever received sex-reassignment surgery while in custody, Judge Tigar found that the Eighth Amendment of the U.S. Constitution requires that Norsworthy receive a vaginoplasty — a procedure that involves removing the patient’s male genitals and creating female genitals. In 38 pages of judicial reasoning, Tigar declared that forcing Norsworthy to keep his male parts while behind bars at the all-male Mule Creek State Prison in Ione amounts to “cruel and unusual punishment.” This is a decision bordering on lunacy.

In 2000, a prison psychiatrist diagnosed Norsworthy with “gender dysphoria,” meaning that he would like to be a woman instead of a man. According to experts, this condition can cause frustration and anxiety for “transsexual” men who are disgusted by their male genitalia. In extreme cases, untreated gender dysphoria can lead to suicide or self-castration. The American Psychiatric Association, which not so long ago treated homosexuality as a mental disorder, now has elaborate and presumably more enlightened views on the subject of gender-identity disorder, which Judge Tigar dutifully adopted. Though prison records list Norsworthy by his given name, Tigar’s opinion refers to him throughout as “Michelle-Lael Norsworthy” and describes him as a “pleasant looking woman.”

At only 16 words, the Eighth Amendment is the most succinct article of the Bill of Rights and has nothing to say about vaginoplasty. It states, in its entirety, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The ban on cruel and unusual punishments was meant to limit gruesome penal methods such as flogging, stoning, and burning at the stake. (Ironically, castration has been held to be cruel and unusual, but in the Norsworthy case, a judge is ruling that significantly more intrusive surgery is constitutionally required.)

To contend that “forcing” a prisoner to continue as a man violates the Constitution is absurd. Norsworthy was born male, and he was male when he committed a murder on April 15, 1987 and when he was sentenced to prison later that year. Though he is allowed to take female hormones, have a pony tail, wear a brassiere, and shower out of the sight of other inmates in prison, he has been a male for all of his 51 years. Manifestly, the state of California did not make Norsworthy a male. His punishmentwhich is what the relevant provisions of the Eighth Amendment address—did not include a specification of his sex or gender. Rather, prison authorities merely decided that Norsworthy is not eligible for an elective cosmetic procedure at government expense while incarcerated. In this regard, vaginoplasty is no different than a facelift, tummy tuck, liposuction, nose job, Botox injections, or lap band surgery. No federal appellate court has recognized a right to sex-reassignment surgery. In the only related case that Tigar cites in his decision, the First U.S. Circuit Court reversed a district court ruling that had ordered the procedure for an inmate in Massachusetts. What Norsworthy chooses to do with his body at his own expense, if and when he is released from prison, is up to him.

Judge Tigar is a Berkeley-educated activist judge and the son of noted radical lawyer Michael Tigar, who once represented Angela Davis. He displays what University of Colorado law school professor Paul Campos terms “jurismania”: the irrational conceit lawyers and judges frequently exhibit that presumes all of society’s problems—no matter how complex or intractable—can and should be solved through litigation, especially if the “solution” is characterized as an interpretation of “constitutional law.” In his 1998 book of the same title, Campos contends that the “obsessive pursuit” of litigation and “irrational worship” of legal rules in contemporary American culture “can come to resemble a form of mental illness.” Resorting excessively to legal procedures comes at the expense of common sense and leads to “tendentious jargon,” self-serving posturing, fraudulent rhetoric, undue deference to “experts,” and overreliance on decision-making by privileged elites such as lawyers and judges—all of which are on display in Judge Tigar’s ruling.

Punishing criminals is a basic state function, and deciding how (and at what expense) to run prisons is a quintessential legislative judgment. As long as prisoners are adequately fed and housed and are not arbitrarily abused, it should be of no concern to a judge—and especially a federal judge—whether prisoners have access to color TV, air-conditioning, recreational facilities, or elective medical procedures. Serving a prison sentence is a punishment; it is not supposed to be enjoyable.

It is nonsensical to grant imprisoned convicted felons health-care “entitlements” that many law-abiding, hardworking taxpayers don’t enjoy. One hopes that the state appeals Judge Tigar’s unprecedented ruling. Unless resisted, jurismania will destroy popular sovereignty. Campos reminds us that judges are “nothing more than an especially politicized subclass of lawyers.” And they rely on the docility of their subjects to impose their baseless edicts. Jeffrey Norsworthy is not Rosa Parks, vaginoplasty is not a civil right, and Tigar’s ridiculous decision is not a credible interpretation of the Constitution. It should not stand.

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Federal Judge Finds No Constitutional Right to Carry a Concealed Weapon

A federal judge in California has ruled there is no Second Amendment right to carry a concealed weapon.

Gun rights lawyer Alan Gura of Alexandria, Va., is planning to appeal the ruling by U.S. District Judge Morrison England Jr. of Sacramento, the Associated Press reports.

England sided with the Yolo County sheriff, who refused concealed weapons permits unless the applicant was a victim of a violent crime, was threatened with violence, was a business owner carrying large amounts of cash, or cited another specific need.

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