Now in its fourteenth edition, the Review is the first scholarly journal to appear after each SCOTUS term ends and the only one grounded in the nation’s first principles, liberty, and limited government
The Review has built quite a reputation over the years, and has earned some high praise from notable SCOTUS experts:
“Cato, with its emphasis on limited government and individual rights, has weighed in with a book of essays by academics and practicing lawyers that manages to skewer liberal and conservative justices alike.”
– Tony Mauro, Supreme Court correspondent, The National Law Journal and Legal Times
“Unquestionably, the definitive volume on the Supreme Court’s term.”
– Tom Goldstein, founder of SCOTUSblog (and co-chair of litigation and Supreme Court practice at Akin, Gump, Strauss, Hauer & Feld LLP)
In this year’s issue, Shapiro and other leading legal scholars analyze the 2014-2015 Supreme Court term, specifically focusing on the most important and far-reaching cases of the year, as well as upcoming cases to watch.
Obama’s planned action perverts the meaning of the legal doctrine
“As you listen to the president try to explain himself tonight, you are going to hear a lot about how his plan is just a sensible exercise of prosecutorial discretion — how he is just using the sparse resources Congress gives him to enforce the law in more efficient ways. It will sound unobjectionable — even appealing.
But understand, it will be lawless and an invitation to waves of law-breaking. Obama is not merely prioritizing crimes; he is equating his non-enforcement of congressional statutes with the repeal of those statutes. He is not merely ignoring some lawbreakers so he can pursue others; he is declaring that categories of non-Americans of Obama’s unilateral choosing have a right to break our laws and be rewarded for it.”
Hello, old friend. pic.twitter.com/d2d38Yx2wj
— Charles C. W. Cooke (@charlescwcooke) November 19, 2014
THE HAMMER: to Bret Baier on Special Report
“The reason Obama has waited is because, according to his own words which he has said repeatedly for six years, he is not allowed under the constitution to do what he’s now proposing to do. He has said this over and over again. He’s said I’d like to do all these things, but under the constitution, I do not write the laws. If any of this is true, this is a wholesale canceling of a law passed by Congress. If it is to be canceled, if it is to be reformed, it has to be done.”
“This is a constitutionally odious proposal. He knows it and he admitted it himself. As a matter of policy, I think it’s a terrible idea. I’m not against legalization, but I am against legalization before you’ve done anything serious about controlling the border. Otherwise this is an advertisement to the whole world, particularly Latin America where it’s easy to get across the border, that you come into America illegally. It’s up to you, we do not control our borders. And then if you wait long enough and you make strong enough case and there’s enough pressure, we will legalize you.”
“He’s waited [to do this] because it’s illegal. If they were a Republican who is in the White House and says I waited and waited, I demanded abolition of the capital gains tax and the Congress wouldn’t do it, so i’m ordering the IRS: no collection of capital gains. If congress wants to pass a law to override that, I invite that. You would be up here as everybody would and say this is unconstitutional, it is an impeachable offense. That’s what he’s doing. He himself has admitted that year after year up till now, with two years left, all the elections behind him. He doesn’t care.”
“I know there are some folks who wish I could just bypass Congress. I can’t.”
For Washington Times, Stephen Dinan reports: Sen. Charles E. Schumer, New York Democrat, stumbled Tuesday over basic American history, crediting Thomas Jefferson for authorship of the Bill of Rights during a debate over the First Amendment and campaign finance.
“I think if Thomas Jefferson were looking down, the author of the Bill of Rights, on what’s being proposed here, he’d agree with it. He would agree that the First Amendment cannot be absolute.”
– Harvard graduate, Senator Charles E. Schumer
While Jefferson is deemed the principal author of the Declaration of Independence, he was not intimately involved in the writing of the Constitution or the Bill of Rights, which is the first 10 amendments to that founding document.
Indeed, Jefferson was out of the country, serving as minister to France at the time of both the Constitution convention and the congressional debate over the Bill of Rights. Read the rest of this entry »
“…I think that’s what should be the rule, that it should be legislatures rather than judges who draw the line on what is permissible.”
For National Review Online, Tim Cavanaugh writes: Retired Supreme Court Justice John Paul Stevens supports gutting the Second Amendment in order to remove any limit on government infringements on the right of self-defense.
In his new book Six Amendments: How and Why We Should Change the Constitution, Stevens — who generally favored maximum government power during his 35-year tenure on the high court — proposes, among other things, changing the language of the Second Amendment to the U.S. Constitution so that the amendment would read, “ . . . the right of the people to keep and bear arms [when serving in the militia] shall not be infringed.”
[Order Justice John Paul Stevens’s book Six Amendments: How and Why We Should Change the Constitution from Amazon]
Donal Levine writes: President Barack Obama has made it absolutely clear that he will rule by Executive Order for the remainder of his term. Republicans and independents have decried this as an unconstitutional power grab, a usurpation of authority granted by the Constitution to Congress, while Democrats are mostly too embarrassed to defend what they so strongly opposed under George W. Bush and Richard Nixon.
A conservative response should begin by observing that the U.S. Constitution is not as legally neat as the protesters suggest. While most folks focus on the uplifting sentiments of the Bill of Rights to liberty and property, the essential Constitution is all about power and how it is divided. The progressive myth of a legalistic constitution of rights is just that, a fable to cover its own view of political power. The Bill of Rights was not even part of the original document. The fundamental Constitution is outlined in its Articles, dividing power between legislative, executive, judicial, state and amendment institutions. But the boundaries between them are anything but clear.
Abraham Lincoln suspended judicial habeas corpus and controlled speech during the civil war without legal support from Congress and actual opposition from the Supreme Court. The succeeding Reconstruction Congress impeached the president for merely attempting to replace his own cabinet and when unable to convict him made his veto a nullity by strict party rule, rigged voter lists in the South, and effectively unicameralizing the Senate and House under a joint committee of Republican leaders. Andrew Jackson directly refused to implement a Supreme Court decision supporting Cherokee property rights, distaining the court to enforce its ruling if it could because he would not.
Free Speech Smack-Down Victory: California College Student Teaches School $50,000 Lesson on ConstitutionPosted: February 25, 2014
“What are the rules? Why are the rules tied to my free speech?”
— Student Robert Van Tuinen
“… if you’re going to start an organization like that you have to go through the rigamarole.”
— Campus Police Officer
It’s impossible to watch this video without getting mad. It’s a priceless document, capturing the most offensive and absurd violation of free speech perhaps ever recorded on the campus of a public University. The bureaucratic run-around given to this student by a Campus Law Enforcement Official, and an unidentified University official, is spectacularly, breathtakingly stupid. It’s heartbreaking to listen to their justifications, false objections, and rationalizations. More common than you might think. Blatantly illegal. Is this America? Welcome to modern Academia. Watch the whole thing:
Do these public servants realize they’re exposing the University to a lawsuit? This footage could be preserved as a training video for University staff members. Explicitly demonstrating how to violate a student’s constitutional rights. They couldn’t have performed a more perfectly-worded constitutional rights violation if they had a script written for them by a KGB public relations expert. Example, telling the student that there’s a ‘designated place..”
“…in front of the student center, in that little cement area,” where free expression is allowed…”
— University official
Here’s the legal victory story from Fox News:
A California college student who was blocked last year from handing out copies of the Constitution gave his school a lesson in civics and the law, winning a $50,000 settlement and an agreement to revise its speech codes.
Robert Van Tuinen, 26, settled with Modesto Junior College just five months after his run-in with school officials on Sept. 17 – National Constitution Day. Van Tuinen said he’s more excited about getting the school to revise its speech codes, which previously confined the First Amendment to a small area students had to sign up to use.
For decades, Supreme Court justices have been rewriting key parts of our governing document.
Richard A. Epstein writes: The United States Constitution is at its core a classical liberal document. But over the last hundred years, much of it has turned into a progressive text thanks in large part to Supreme Court justices who interpret it creatively, thereby skirting the laborious amendment process of Article V. Here, I address one major, if underappreciated, cause of the problem—the fine art of making its critical words and letters just disappear through the Court’s imaginative application of its power of judicial review. This constitutional disappearing act does not take sides in the longstanding debate over judicial restraint and activism. In some cases, it unduly expands judicial power; in other cases, it wrongly contracts it.
The two best illustrations of how this process works are found in the Eighth Amendment and in Article 1, which sets out the federal government’s taxing power.Cruel and Unusual PunishmentsThe Eighth Amendment reads in full: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Its use of the passive voice creates an interpretive ambiguity. Does the amendment bind only the federal government or does it bind the states as well? Using the word “excessive” twice in one 16-word sentence is not a model of clarity.
But for these purposes, the most critical word is “punishments.” The letter “s” has disappeared during the arduous process of constitutional interpretation. Just Google the phrase “cruel and unusual punishment,” and 1,740,000 entries come up. Add the “s” and that number drops by 80 percent to 330,000 entries, most of which refer to punishments without the “s.”
The importance of the slip is evident from the 2012 Supreme Court decision Miller v. Alabama, which struck down a mandatory lifetime sentence for a fourteen year-old guilty of murder. In writing her opinion, Justice Elena Kagan included the “s” in quoting the clause. But during the analysis, that “s” disappears, thereby transforming the constitutional text:
The Eighth Amendment’s prohibition of cruel and unusual punishment “guarantees individuals the right not to be subjected to excessive sanctions.” That right, we have explained, “flows from the basic ‘precept of justice that punishment for crime should be graduated and proportioned’ ” to both the offender and the offense.
Justice Kagan faithfully references earlier cases that take her position. But the wealth of precedent does not conceal the major shift in constitutional focus. The prohibition against “cruel and unusual punishments” conjures up a list of punishments that should be rejected because they are cruel, no matter what the offense. The issue of proportionality never arises.
That interpretation makes sense because this clause is lifted word for word from the English Bill of Rights of 1689, after it accuses the deposed King James II of inflicting “illegal and cruel punishments.” The clause outlaws the rack, the thumb-screw, drawing and quartering, and other fiendish activities. In no sense did it outlaw the death penalty. Nor could that reading be sensibly made of our own Constitution, whose Fifth Amendment contains references to the death penalty in connection with due process, grand jury presentments, and double jeopardy.
On this day in 1865, the institution of slavery legally ended with the ratification of the 13th Amendment, just seven months after the end of the Civil War. The House passed the measure in January 1865, yet it became official almost a year later when Georgia’s ratification completed the constitutionally required approval by three quarters of the states. Georgia was the 27th state to ratify out of 36 at the time.
Today, we treat politics as a sport, but it’s really a conflict of ideologies between federalists and technocrats…
Bruce S. Thornton writes: The media and pundits treat politics like a sport. The significance of the recent agreement to postpone the debt crisis until January, for instance, is really about which party won and which lost, which party’s tactics are liable to be more successful in the next election, and which politician is a winner and which a loser. But politics rightly understood is not about the contest of policies or politicians. It’s about the philosophical principles and ideas that create one policy rather than another—that’s what it should be about, at least.
From that point of view, the conflict between Democrats and Republicans concerns the size and role of the federal government, which is no surprise to anyone who even casually follows politics. But more important are the ideas that ground arguments for or against limited government. These ideas include our notions of human nature, and what motivates citizens when they make political decisions. Our political conflicts today reflect the two major ways Americans have answered these questions.
The establishment GOP’s embrace of progressivism’s central premise.
This week, Dr. Krauthammer, Washington’s most influential expositor of mainstream GOP thought, obligingly spared me the need to prove my point. He gave as clear an account of the modern Republican conception of “conservatism” as you will find. Fittingly, he did it on the program of progressive commentator and comedian Jon Stewart. Today’s smartest Republicans, self-aware enough to know their core views deviate significantly from those of conservatives in the tradition of Buckley, Goldwater, and Reagan, are more likely to say what they think to Jon Stewart. His audience is apt to be receptive, maybe even won over, by a mature progressivism portrayed as what conservatives really think. It is not likely to go over as well with, say, readers of National Review.
Stewart claimed that conservatives are anti-government. Initially, Krauthammer appeared to reject this caricature, replying, “The conservative idea is not that government has no role.” But, alas, when he got around to what the proper role of government is, Krauthammer sounded more like Stewart than Buckley.
For the sneering consequentialists of the post-constitutional Left, Justice Antonin Scalia is a bogeyman among bogeymen and the Second Amendment is an exasperating relic. It should thus come as no great surprise that Scalia’s considered and thoughtful comments on the future of firearms law, offered in good faith during a speech in Montana last week, were met with brash and injudicious criticism.
As revenge for his responding to the question of whether private citizens could own rocket launchers with the modest answer that this “remains to be determined,” the Daily Kos went so far as to suggest that Scalia, whom the outlet called “Supreme Court Justice Fever Dream,” was a “crackpot” and “not right in the head.” Over at the more moderate Daily Beast, meanwhile, Adam Winkler continued to lie about the nature of the Second Amendment, contending slipperily that the “insurrectionist understanding” is false and advancing without shame the smear that “Justice Scalia, that acclaimed lover of originalism,” is “taking his cues from the Tea Party rather than from the text and history of the Constitution.”
The Constitution states that the president “shall take care that the laws be faithfully executed.” Not “shall take care that the laws be faithfully executed if he feels like it,” which is how the Obama administration apparently reads the provision.
By Mario Loyola
During the presidency of Barack Obama, we’ve learned something about our Constitution that we did not know: The president can simply refuse to enforce whatever laws he doesn’t like. Not as a matter of prosecutorial discretion, mind you, but in general, as to whole categories of people.
First it was DOMA, in a sop to the gay lobby. Then it was the immigration laws, which the president has decided not to enforce against young illegal immigrants. Now it’s the crucial employer-insurance mandate in Obamacare, which is “suspended” for a year, because the president feels like it. I say “crucial” because, absent the employer mandate, the official estimate of how much Obamacare is going to cost, and how it’s going to affect the number of uninsured, is no longer valid.
Employers shouldn’t have to provide health insurance at all. But without it, more people will go on the state insurance exchanges, where their health insurance is subsidized. That subsidy is the single-payer essence of Obamacare. Hence, suspending the employer mandate just brings us one step closer to the single-payer system that liberals wanted all along.
Others are busy fleshing out the vast implications for the nation’s health-care market. But let’s focus on the constitutional implications for a moment.
The Constitution states that the president “shall take care that the laws be faithfully executed.” Not “shall take care that the laws be faithfully executed if he feels like it,” which is how the Obama administration apparently reads the provision. Rather, he must see that the laws are faithfully executed, period. Otherwise, there’s no point to the veto power. The president can simply decide, by his sole imprimatur, to nullify any law he doesn’t like. “Imprimatur,” incidentally, is at the roots of the words “emperor” and “empire.”
Alas, there is no way to enforce the president’s obligation to see that the laws are faithfully executed. The courts will not issue a mandamus — it is a “political question.” It’s probably not a “crime or misdemeanor” for him to fail to enforce a law, so he probably can’t be impeached for it. The reason presidents have enforced the rule of law is, generally, the people’s expectation that they will. But if the president simply ignores the Constitution, and the people cheer him on (as happened during the administration of Franklin D. Roosevelt), then where does that leave us?
In the middle of a wide-open Pandora’s box, that’s where.
The Obama administration’s approach to executive power makes a mockery of constitutional process. His supporters appear totally oblivious to the precedent they’ve set, and to how sorry they could be one day.
What if future presidents do exactly the same thing? What if a future president announces that he will no longer enforce any aspect of the Fair Labor Standards Act and that the minimum wage will no longer be enforced? What if a future president decides to stop collecting income taxes on his supporters?
If a conservative president did anything like that, liberals would be crying “Dictatorship!” Yet they cheer when Obama does it. By establishing the precedent that the president can ignore the law whenever it suits him, the Obama administration has struck a grievous blow against the Constitution he is sworn to defend.
“…With the failure of the Democrats’ attempt to exploit the Newtown school shooting to press forward gun control measures, President Obama took to the microphones along with the relatives of Sandy Hook victims to demonize his opposition. This, of course, was his strategy all along: knowing that he did not have 60 votes in the Democrat-controlled Senate to pass his gun control legislation, he pressed forward anyway, hoping to paint Republicans as intransigent, immoral tools of the gun lobby who don’t care about dead children. After demonizing Republicans, Obama hopes, he can press Americans into voting Democrats back into power in the House of Representatives…”
At the end of my visit to my town’s brand-new supermarket the other day, the cashier said she would be more than happy to help me self-check-out my purchases.
I said, “No, thank you, I would prefer that you do that.” She said, “Actually, we prefer that the customers get into the habit of checking out their groceries.” I said, “Actually, I would prefer to never get into that habit. I would prefer that you handle the entire operation. You are the cashier. You are the vicar of groceries. You, not I, work here. So earn your money and ring up my purchases. And then bag them. Please.”
Are we entering a dark, deeply un-American era when we literally have to do everything for ourselves?
Bagging your own groceries is a pernicious tradition imported from France, where people have a history of cravenly submitting to authority. America, by contrast, was founded on the concept of service. It’s what we fought for at Yorktown and the Alamo. John Jay even wrote about it in “The Federalist Papers.”
Today, we’ve forgotten this and ignominiously kowtow. But why should I have to self-direct my 401(k) or judiciously select from an a la carte menu of health-care services? Why can’t somebody do this for me? If I knew anything about health, I’d still be healthy.
It doesn’t end there. To order tickets, why do I have to go online to a stupid, labyrinthine website and fumble through all those boxes and continually get a message reading “Insufficient Information” while I race against time to make my purchase before six minutes expire? In the good old days I simply said: “Two balcony tickets for the Dexys Midnight Runners Tribute Band.” When did the revered customer become a lowly data-entry specialist?
This debacle started with ATMs and bussing your own table and being forced to personally aggrandize yourself instead of relying on well-earned kudos from others. Then people took to those feverishly unhygienic delis where you have to construct your own salad by selecting festering legumes and gobs of goo from an open trough. I hate making my own salad. I never strike the proper balance between carbs and proteins. And I always forget the horseradish sauce. I prefer that my salad be made by professionals.
Another watershed moment in our long march toward retail serfdom kicked in when Americans began pumping their own gas and cleaning their own windshields and checking their own oil. True, in New Jersey, they pump the gas for you. It’s a state law. But Garden Staters only do this because they know that otherwise nobody would ever visit New Jersey.
In the supermarket, I started to imagine other nightmare scenarios. Will I now be expected to cobble my own shoes? Short my own stocks? Raise my own arches? Canalize my own roots? Diagnose my neuroses?
“I think I’m mentally ill, doctor.”
“Could you be a little more specific? We prefer that our patients analyze their own conditions.”
“Well, I think that I suffer from obsessive-compulsive disorder, agoraphobia, profound insecurity about my height, and aphasia.”
“What course of treatment would you self-recommend?”
“I was hoping you might prescribe some medication.”
“We prefer that our patients self-medicate.”
“Fine, I’ll take a case of Oxytocin and six crates of Prozac.”
“Great. That’s $350, out of network. No checks.”
I don’t even want to think where this is headed. Am I going to have to haunt my own house? Watch my own whales? Turn on my own dime? And at the end, will I be expected to self-euthanize? Self-eulogize? Self-spread my own ashes in the Grand Canyon? Self-belt-out a highly personalized, knee-slapping rendition of “My Way” at my own graveside?
I’d rather self-destruct.
Was Obama in Charge—or Not?
by Gary Schmitt
Much has been made of President Obama’s considerable use of the pronoun “I” on the night he announced to the nation the killing of Osama bin Laden. As Mark Bowden notes in his recently published account of the killing and the decision-making that led up to the operation, The Finish, the president was not shy about putting himself front and center when it came to the decision to proceed with the operation: “I directed Leon Panetta … I was briefed … I met repeatedly with my national security team … I determined … and authorized … Today at my direction.”
While a bit over the top when it comes to the “me” factor, nevertheless, the president is indeed commander in chief and, under the Constitution, with its unitary executive, he is, as the text of that document asserts, the sole holder of “the executive power.” Unlike many of the state constitutions of the time, the national executive authority was not divided among various state office holders nor as under the Articles of Confederation—the country’s first federal constitution—was it in the hands of the national assembly. So, whether critics of the president liked his rhetoric or not, whether they felt it was unseemly or not, it wasn’t out of bounds from a constitutional perspective.