American Heroes in Spotlight: Andrew McClary and Bunker Hill

Andrew McClary was one of the early great leaders in the American Revolution and his patriotic sacrifice should be taught and appreciated today.

By way of background, he grew up in an immigrant Irish family in New Hampshire and eventually worked his way up the rungs of the New Hampshire colonial society and became a town clerk and local leader. He operated a tavern on family farming property with his father that was the hub of social activity in Epsom, New Hampshire and had an acute understanding of business.

As neighboring Indian tribes threatened the colonial settlement and local towns, he eventually ventured into leading missions to track and find the Indians in the surrounding areas. The people looked up to him and trusted him as he sought to keep them safe by engaging in militia activity for the New Hampshire Rangers. During the French and Indian War he developed his tracking skills to help the locals defend their towns and families. He aggressively pursued the threatening Indian tribes with the skills he cultivated.

As a business operator in the social hub in the town, McClary also openly provided a forum for dialogue and commentary regarding the upcoming Revolution among the locals. In October 1774, King George III had issued an order restricting the export of arms and powder to the colonies. The colonists had begun to take action in response and in December 1774, six months prior to the Battle of Bunker Hill, McClary helped lead a raid at Fort William & Mary (also known as “The Castle”) in New Castle, New Hampshire that was near the Portsmouth Harbor. The patriots had ascertained that an upcoming major conflict with Great Britain was on the horizon and during the raid had captured gunpowder and cannons for their communities.

In April 1775, McClary was tending to his farmland when he was notified that the burgeoning conflict with the British forces was growing closer to New Hampshire after the Battles of Lexington and Concord in neighboring Massachusetts. He organized his local militia to join with other colonial pockets and they embarked on their mission to join forces at the looming Battle of Bunker Hill, in what would come to be one of the early major battles in the American Revolution.

During the Battle of Bunker Hill, McClary served as a major. There are accounts that during the Battle of Bunker Hill, McClary emerged as a fiery and strong leader of his men while galvanizing them to fight with courage. He emphasized to his men to target the British officers in battle so as to force the Redcoats into confusion and endure unexpected losses at the hands of an impassioned American force. This would be a battle in which the Redcoats would in fact suffer heavy losses to their officers despite winning from a strategic view. It would help usher in a new method of warfare that would become prevalent during the American Revolution. There was a drift away from the organized and formal militaristic battle sequences that the British were most familiar with at times of war. The targeting of officers and crafty fighting style of the Americans would become a major part of the American military tradition.

Following the battle, McClary began to tend to the wounded American soldiers during the retreat. After helping for some time, he returned to the area near where the Battle of Bunker Hill was fought to continue with reconnaissance and track the British. He made observations and was on his way to other officers to discuss his findings with them when a stray canon ball from a nearby frigate mortally wounded him. He was given the proper respects and was remembered as a hero and the highest officer to sacrifice his life at the Battle of Bunker Hill.

Fort McClary in Maine is named after Andrew McClary and a memorial is present in Epsom, New Hampshire that commemorates his patriotic and heroic legacy. We reflect on his sacrifice for our country and will continue to spotlight heroes in American history.

Works Cited:

https://www.wikitree.com/wiki/McClary-279

https://sites.rootsweb.com/~epsom/biography/amcclary.htm

http://www.epsomhistory.com/epsom/soldiers/andrewmcclary.htm

Expansive Government in Commerce Clause History

By: Chris Gomez

The Commerce Clause was the product of ingenious foresight by our Founding Fathers to create an ability for the federal government to be the arbiter of interstate and foreign trade. As an enumerated power in Article 1, Congress was granted these powers. As our nation has developed, however, the judiciary has upheld varying interpretations of it. In this piece, we touch on some historical background of the Commerce Clause. In some matters, the judiciary has erred in its interpretations and as a result created an infringement on the rights of citizens.

To begin, we reflect on the seminal case of Gibbons v. Ogden (1824), where the Supreme Court ruled that a New York monopoly over permits for a ferry business between states was unconstitutional. An individual obtained a federal permit to run his ferries between the ports of New Jersey and New York which ran against a New York law granting a monopoly over these routes to a select group of businessmen. The Supreme Court interpreted this as a violation of the powers granted to Congress under the Commerce Clause and ruled New York was not entitled to a monopoly in this area. The power to regulate navigation within interstate commerce was in the domain of Congress as enumerated by the Commerce Clause. This interpretation of the Commerce Clause was harmonious with Constitutional principles. It correctly reflected a proper use of the federal government’s power to regulate in this area.

Moving forward to the 1930s and 1940s we reflect on two major cases during President Franklin D. Roosevelt’s New Deal era. First, is the case of NLRB v. Jones and Laughlin Steel Corp (1937), Roosevelt’s newly established National Labor Relations Board (NLRB) filed suit against the Jones and Laughlin Steel Corporation for its firing of striking workers. The government’s position was inspired by pro-worker sentiment. With the advent of the New Deal, FDR’s administration had supported union workers and sought to return the economy to full employment. The Court decided that the government agency, the National Labor Relations Board, had a valid duty to punish businesses that violated the rights of unions to organize. In the majority opinion, Chief Justice Charles Evans Hughes wrote that the dispute between management and labor would have reverberating effects on the national economy, thus permitting it to be regulated under the power of the Commerce Clause.

Hughes further wrote and did acknowledge, however, that situations that have a limited effect on interstate commerce and are so remote and local in nature may have difficulty being subject to Congressional regulation in this area. This standard, however, without strict boundaries raised the possibility of being abused with the potential ability of the government actor to call the proverbial “balls and strikes” on companies’ policies that it deems has influence on interstate commerce. This decision helped construct the framework of excessive government regulation into the sector of private business.

Let us compare this expansive reading of the Commerce Clause to Gibbons v. Ogden. In Gibbons, a state sought to usurp an enumerated power and this was negated by the Supreme Court within the principles of Constitutionalism. NLRB was a dramatic step away from the Gibbons interpretation, whereas the Court was now ruling on a hypothetical effect on the national economy to expand the powers of the federal government. The outcome of NLRB, appeared to pacify political aims and validate rights of unionization through court order rather than legislative channels.

In 1942, the Supreme Court further assessed the flexibility of the Commerce Clause in the case, Wickard v. Fillburn. In this case, the Court followed its earlier interpretation in NLRB to stop Mr. Fillburn, a local farmer, from producing more wheat than was allowed under government production limits to feed his own family. The government had attempted to raise crop prices by instituting production limits per acre of land through the Agricultural Adjustment Act of 1938 hoping that reduced supply would raise prices and solve the plight of farmers. Fillburn had gathered about 12 extra acres worth of wheat above the limit set by the AAA. His argument was that since the wheat was meant entirely for his own use and never hit market there was no problem relating to interstate commerce.

Per the standard articulated by Hughes in NLRB, this would fall firmly into the category of local matters which have no need to be regulated. The Court, however, expanded from Hughes’s interpretation to a more invasive interpretation arguing that the effect on commerce is substantial because without this extra wheat Fillburn would have purchased on the market and thus effected price. The Court cited a “substantial economic effect” (the proposed movement of wheat prices upon Fillburn’s purchase) as sufficient grounds to rule against this farmer and allow for regulation under the Commerce Clause of all activities “substantive and economic”.

In sum, besides the flawed economic theory that is attributed as a justification for this opinion it is invasive for the government to infringe on the personal rights of its citizens in such a way. It was a soft form of the failed central planning model that has been prevalent in Communist nations. Wickard is often considered a controversial decision and diverged from the Court’s interpretation of the Commerce Clause in Gibbons and NLRB.

The powers of the federal government have been expanded through Supreme Court interpretation of the Constitution since the beginning of the Republic, but the New Deal cases concerning the Commerce Clause were among the most aggressive actions undertaken by the Supreme Court to exceed its regulatory boundaries. Instead of standing as a barrier between excessive state regulation as seen in Gibbons, the New Deal cases relied on government to excessively interfere with the economic affairs of its people. These interpretations were inherently overzealous and did not lend themselves to the ideals of a market economy within the boundaries of the Constitution. These cases should stand as a bellwether to warn the populace of the dangers of an overzealous government in our everyday lives especially in the present lingering COVID-19 economic cloud. An interpretation of the Constitution that respects the principles of federalism and the limits of the branches of government is essential to retaining the civil liberties we enjoy in this nation, and as a safeguard against tyrannical government action.

Works Cited

https://constitutioncenter.org/blog/gibbons-v-ogden-defining-congress-power-under-the-commerce-clause

https://www.oyez.org/cases/1900-1940/301us1

https://www.oyez.org/cases/1940-1955/317us111

https://supreme.justia.com/cases/federal/us/317/111/

“Anti-Trust” of the Constitution

“Breyer retire!” The monopoly of the progressive movement in the mainstream media has greatly harmed the understanding of Constitutional principles in our society. The “Breyer retire” craze is fueled by an unhealthy alliance of politics and an ignorance towards one of the essential fabrics of our Constitutional system.

While Justice Stephen Breyer, a President Bill Clinton appointee, and noted progressive jurist should not be confused for a conservative jurist on the bench, he has had a judicial career worthy of respect and distinction. The talking heads in the media and legal circles now are pressing for his retirement and fear a redux of the “Ginsburg Mistake”. The mistake commonly referred to is the fact that Justice Ruth Bader Ginsburg chose not to retire under former President Barack Obama and instead battled many health issues throughout the administration of President Trump which led to Trump’s appointment of Amy Comey Barrett upon her death shortly before the November 2020 election.

Supreme Court justices have life tenure and while some may disagree, there is a compelling argument that this is one of the most essential components within our system of government. Supreme Court justices, therefore, have the power whenever they deem fit to retire or may opt to serve their lifetime in office. The Constitution simply places the requirement of “good behavior” as attached to their tenure. This is a necessary defense mechanism to preserve our governmental system despite the many ideas and movements that permeate society and threaten its intrinsic operation. It puts forth an effective system of gradualism and counter-weight to those tides in order to preserve Constitutional principles in our nation.

The recent movement to entice Justice Breyer to step down is rooted in the deep push for a monopoly of social egalitarianism that has dangerously come to pass in our nation, but has no basis in authentic Constitutional principles. Those in the progressive legal academy in collaboration with the media prioritize preserving abortion rights and the recognition of same-sex marriage and its related LGBT issues at all costs. The mere suggestion of a conservative president raises alarms that these rights will be threatened with the appointment of more justices that adhere to a constitutionalist philosophy.

In fairness, we present a defense here of the Supreme Court as an institution while acknowledging that it has played a role contributing to this politicization moment by having chosen to adjudicate the abortion, marriage and lifestyle issues that are best left to local governance. Substantive commentary on these individual issues can be found in prior articles as here we are simply focusing on the concept of how society should view the Supreme Court.

Next term the Supreme Court will be deciding a potential new blockbuster case on abortion rights. This case has already begun to make waves on both sides of the aisle and it is sadly such a divisive topic in our nation today. At present, the Supreme Court stands at a 6-3 majority of justices appointed by Republican presidents. While it is fair to say that the Supreme Court has grown gradually more conservative on several issues including religious freedom and Second Amendment, it has also shown the effective mechanism of our Constitutional system in the process.

For example, the constitutionalist vision that the late President George H.W. Bush had when he made the appointment of Justice Thomas nearly three decades ago has carried over to today with every opinion Justice Thomas pens that stems from his comprehensive understanding of Constitutionalist principles. On the progressive side, President Clinton’s view of Constitutional interpretation has continued to advance to the modern day in Justice Breyer’s opinions on issues such as administrative law and the role of government agencies among other progressive interests. While it is not fair to say that the President should be ordering opinions on certain issues, it is perfectly reasonable that the President would have the respect for the jurist to contemplate independently while appreciating the jurist holds certain philosophies over others. It is the beauty of our system that an administration may be out of power, but their philosophy on constitutional interpretation will live on even if an administration of another prioritized philosophy is governing. It strikes a balance in the structure of our nation’s system of government.

When we as a society infringe on the Constitutional framework and in the process challenge the independence of the institution of the Supreme Court based on an ignorant “anti-trust” principle of our Constitutional structure, it will only lead to unrest.

The actions to forcibly suggest Justice Breyer retires are unfair to him and to the structure of the Supreme Court. It sets a precedent to cave to the masses and demeans the Supreme Court to nothing more than a political theater, bowing to the whims of a society that gleefully ignores the fabric and intent of our Constitutional system. It is safe assumption that Justice Breyer would come out on the side of any replacement President Joe Biden would put forth on the issue of abortion. This does not mean, however, that his discretion as dictated to him by right under the Constitution to make a decision as to the length of his tenure on the Supreme Court should be forcibly abdicated.

The common politics counter-argument of the media and activist talking heads considers the actions Senator Mitch McConnell took to not take up the confirmation process of a jurist to replace Justice Antonin Scalia during the end of President Obama’s term. They willfully ignore the provision of the Constitution that provides the senate with “advice and consent” power over addressing Supreme Court vacancies. Senator McConnell made clear to President Obama to not make an appointment as the election neared, while that decision may be the subject of debate, it does not change the fact that the Constitutional right existed to make that decision. President Obama then in fact made his decision to name now Attorney General Merrick Garland as the appointment. Both branches exerted their rights- the President appointing and the senate expressing its dissatisfaction and not taking action. The confirmation was not processed as it did not gain consent from the senate as the President was duly advised.

Our society must learn to appreciate the structure of the Constitution and the purpose it serves. We need to hold ourselves to a higher standard than ignorance derived from a disordered drive to codify social egalitarian principles and thus contribute to the political unrest of our nation. The Justice Breyer saga is but one example of the willingness to disregard our structure and reduce the judiciary to nothing more than an extension of societal “anti-trust” and destructive societal sentiment. It is about time we demanded better.

Fulton: A Uniform “Fostering” of Religious Liberty?

The U.S. Supreme Court recently issued a unanimous opinion in the matter, Fulton v. Philadelphia that pitted the city of Philadelphia against a Catholic foster care agency over the agency’s position to not certify unmarried and same-sex couples for foster care services as it would not have been in accordance with the teachings of the Catholic Church. The city of Philadelphia then proceeded to discontinue referrals to the agency and demanded that a new foster care contract with the city, include certification of these couples. In a 9-0 decision, the Supreme Court sided with the Catholic foster care agency and ruled that the basis in which the city asserted its position stemmed from a contractual non-discrimination requirement of the Fair Practices Ordinance. The construct of the ordinance as applied to the Catholic adoption agency violated the Free Exercise Clause of the First Amendment.

Roberts Majority Opinion

In his majority opinion as we predicted in December, Chief Justice Roberts declined to contemplate overturning a hotly debated precedent case, Employment Division v. Smith that held neutral laws of general applicability do not violate the Free Exercise Clause. Here, Chief Justice Roberts did not find it necessary to revisit Smith because the ordinance was not a neutral law of general applicability as it contained in the ordinance a clause stating that it was the discretion of the commissioner to allow for exemptions. By allowing for that mechanism, the very nature of the ordinance was then deemed to not be generally applicable because it considered the existence of potential undefined exemptions. The commissioner had declined to incorporate religious interests under the exemption. Roberts found that where such a system of individual exemptions exist, the government may not refuse to extend that system to cases of religious hardship without a compelling reason. Roberts than elaborates that no compelling reason existed and was careful to point out that as applied to the Catholic agency, the city’s actions were unconstitutional. He also highlighted that the Catholic agency never sought to compel its beliefs on other agencies, but rather simply sought to practice the tenants of its own faith while servicing the children of Philadelphia.

While Chief Justice Roberts took a narrow approach to the issue, one could appreciate his contesting of the Philadelphia ordinance on its face and making clear that it was not bound in any form of neutrality or general application. One could argue that the steps the city took by not granting the exemption despite it having the discretion to could have been approached from a place of animus. It challenges the very premise of the facade in some anti-discrimination laws that they are meant to consider the interests of traditional protective classes.

The Catholic church’s position on several hot button issues in society today is not clouded in mystery it is very much understood and sadly often attacked by various factions. Philadelphia was well aware of this yet still chose to burden the free exercise of the agency’s faith centered mission. Furthermore, the facts of this matter did not present any situation where in fact a same-sex couple had sought certification from the Catholic agency. There are many agencies with similar services offered in Philadelphia that these couples have likely approached for foster care services. This matter could be considered as a targeted attack on faith interests and it was reassuring that the decision in favor of the Catholic agency was unanimous.

Alito Concurrence

It should also be noted that with regards to the highly debated topic of the status of the Smith matter, Justice Alito penned a heated and lengthily concurrence that disagreed with the Court’s decision to not take up addressing its status as active precedent. He discussed the history and tradition of the Catholic church in servicing adoption and foster care entities. He then addressed the majority opinion’s reasoning and warns that a broader ruling was required because the city has room to evade the narrow ruling if it revokes the exemption power clause from its ordinance. He focuses on the Smith precedent as incompatible with the Free Exercise Clause and spends a significant amount of time discussing the original understanding of the Free Exercise Clause during the early days of the nation with further examples of Supreme Court case law that call into question the premise of Smith.

Justice Alito would likely vote to overturn Smith and replace the core of that opinion with a form of the prior standard that was present in Sherbert v. Verner that stated when adjudicating the Free Exercise cases the Court must assess whether a law that imposes a substantial burden on the exercise of religion was narrowly tailored to serve a compelling government interest. It can be argued that this provides a higher standard than Smith’s neutral law of general applicability framework when assessing whether a government’s actions burden the free exercise of religion.

He also discussed Wisconsin v. Yoder in which the Court in 1972, pre-dating Smith, found that a state law compelling education to age 16 violated the free exercise rights of Amish parents. The state, while having a strong interest in compulsory education did not show with particularity how it would be adversely affected with granting the Amish parents an exemption for them to follow their teachings and have their children leave school following 8th grade. In the present facts, this reasoning could have been applied if it considered that there is a strong interest in anti-discrimination and placing children in foster homes. Here, however, the religious entity did not compromise this mission and take steps to restrict the care of the foster children in the community. It did not offer a form of certification based on its faith beliefs, but at no point did it discourage certification from other foster home services in the local community that allowed for unwed couples or same-sex couples to proceed in the foster care process. The greater government interest would not have been compromised with a religious exemption. The anti-discrimination principle as related to foster care was sustained and the city would have been unable to show a particularized harm based on a basic exemption to a religious provider.

A Free Exercise of Tension

With the community having access to this care, the religious entity would not have to be concerned with a law burdening its Free Exercise when relying on the Sherbert standard. While this standard would seemingly work under these facts, it does not however, put to rest counter-arguments. If there was a situation where there were no secular foster care agencies in the community and only a Catholic agency, this could prove to be worrisome under the Sherbert standard. Would then the government’s greater interest for foster care prevail over the faith interest? It raises complications.

Smith could then be seen as perhaps a workable remedy. It could be argued that in this situation the community law could not in fact be considered a neutral law of general applicability. If there is a Catholic adoption agency acting as the sole foster care agent in the community, an anti-discrimination law passed which included sexual orientation as a protected class would then in fact clearly indicate animus towards a religious entity and any decision to not grant an exemption would further this understanding. A tension, therefore, does exist within the demonstrated methods of Free Exercise interpretation.

Conclusion

The Supreme Court unanimously ruled in favor of the Catholic foster care agency without overturning Smith in the Fulton matter. Chief Justice Roberts made some strong points in the majority opinion focusing on the narrow application of the facts as presented and core of Philadelphia’s actions. Justice Alito also made strong points with assessing other paths to reform the present Free Exercise jurisprudence when looking on a larger scale in his concurrence. One also appreciates his heavy focus on historical context to inform his perspective. Overall, under these facts, the Chief had good arguments that worked in principle here, but Justice Alito’s willingness to return to Sherbert should not be discredited and may prove a stronger basis with ever increasing litigation against faith entities moving forward in society. The Smith framework may prove outdated with the nature of the Constitutional conflicts on the basis of faith that our nation currently faces today, but time will tell as further Free Exercise lines of cases continue to develop.

The Supreme Court’s Take on Life

The United States Supreme Court recently granted certiorari on the case, Dobbs v. Jackson Women’s Health Organization. It will address a Mississippi law that was passed that banned abortions after the 15th week of pregnancy except in cases of health emergencies or fetal abnormalities. The federal district court invalidated the law shortly after enactment and the Fifth Circuit Court of Appeals upheld the district court’s decision. It maintained that the state had an interest in regulating abortion prior to viability in adherence to the undue burden standard, but a full ban on abortions was not permitted. The Supreme Court will address if the ruling remains intact or if there will be a new standard that will be applied to state abortion regulations moving forward. For any meaningful reform, the Supreme Court will need to address the prevailing undue burden standard articulated in Planned Parenthood v. Casey that assesses the timing of the state’s interests in regulating abortion.

In Roe v. Wade, the Supreme Court ruled a woman has a right to an abortion, thus overturning state laws that prohibited the practice entirely and state laws that had prohibited the practice with exceptions for cases of rape and the life of the woman. The Supreme Court relied on the Due Process Clause of the Fourteenth Amendment as the basis for its reasoning with an emphasis on maintaining the broader right to privacy that was generated in Griswold v. Connecticut. Per the Roe court, a woman had bodily autonomy to decide whether or not to undergo an abortion. The Court also instituted a framework of when the state would have a valid interest in regulating the fetus. The framework was as follows: in the first trimester, the state could not regulate abortions; in the second trimester, the state could reasonably regulate with regards to maternal health and in the third trimester, abortions could be banned by the state except in cases that consider the life and health of the mother.

The last major case that presented a strong challenge to the right to abortion was Planned Parenthood v. Casey. This matter was decided in 1992. This case upheld Roe v. Wade and the constitutional right to abortion. It is well-known for altering the Roe standard by providing that the state can regulate abortions from the point of fetal viability and subsequent as long as an undue burden is not imposed on the woman. The trimester framework from Roe would no longer apply moving forward.

With Justice Amy Barrett on the U.S. Supreme Court, there is now an opportunity to revisit the extent of abortion rights. Justice Clarence Thomas has written in prior opinions about his intent that the Court should re-examine the Roe precedent. As medical science has progressed, even those not holding a persuasive faith tradition should consider the activity of the fetus in the womb. If the Supreme Court decided to allow further opportunities for the state to regulate abortion, it could begin the process of making productive reforms and move towards restoring it to its pre-Roe status as a primarily state regulated practice.

It is plausible to consider that the question of abortion itself should never have been a matter considered by the U.S. Supreme Court. Much of the issues that are common concerns for the pro-choice movement such as in cases of rape and the health of the mother were addressed in state laws prior to Roe. While one could argue that abortion itself should not be recognized in any form per the laws of this nation as it denies personhood and the existence of a separate biological life distinct in DNA, several states did take the middle ground with carving exceptions. In either path, democracy was permitted to resolve the issue and the degree of divisiveness, willful ignorance and misinformation was not as dominating as today. This issue defines Supreme Court nomination hearings, fundraising efforts of politicians and it has also become very corporatized when campaign donations and profits generated from samples for scientific testing are also considered. It has forever tarnished our institutions and has permitted the government to draw itself into conflict with religious conscience rights.

With the current trajectory of the Supreme Court, however, it is doubtful that the Dobbs v. Jackson Women’s Health Organization opinion will be wide-ranging and broad. The Roberts court, while having a few landmark decisions, has tended to approach controversial issues with an incremental approach. There are also difficulties posed in the present political climate as court packing demands by the radical left have resounded.

Overall, it is possible that the Supreme Court will uphold the Mississippi law, but carefully narrow it so as to not generate further controversy with a broader approach. A decision reforming the timeframe and degree of the state interest in life based on the new developments in science, however, would be welcome progress with the potential to further expand into the future as heartbeat bill litigation starts to appear in courts. We will continue to monitor this litigation in the coming year with oral arguments in Dobbs set to begin in October and likely a full decision rendered by the Supreme Court in June 2022.

Freedom on Campus in the Red: St. John’s University Edition

Today, our society faces challenges. Many divisive issues have taken the forefront of the national debate including economic policy, the role of government and culture war issues. In the twenty-first century, the American people have increasingly relied upon social media as their news source. It has its positives and negatives. It is much easier to access information, however, it takes away from the initiative to seek out further information and challenge one’s self with substantive truths. The role of the education system must bridge this gap, but sadly it continues to fall short. The rhetoric of informed debate, no matter if you are on the right or left helps grow the intellect of the nation in a manner to prioritize matters of reason over emotional “cancel” initiatives that ignore comprehensive dialogue. The conclusion and outcome driven agenda conveniently skip over the reasoning process that is critical to the development of sound intellect and exchange of knowledge. As a result, we have a divided society filled with misinformation guiding masses behind hollow false premises rich in click bait but light on informed truth.

           Institutions of higher learning have largely abdicated their responsibility to adequately educate the young minds that will serve as the future. It begs one to wonder- will the future be served with reasonable interests and comprehensive dialogue to bridge differences or continue on this emotional path that leaves a fiery path of ruin, an intellectual crisis? This issue has gripped the entire nation. In recent years, speakers have been cancelled at university campuses for perceived societal injustices that are politically incorrect and facilitate dialogue on major issues. Professors have been removed from their positions for holding views that critically assess historical interpretations of the pre-origin and origin of this nation. There is not a sustained appetite for academic freedom and a true marketplace of ideas.

            A recent example has recently occurred in New York at St. John’s University. Students had sought to organize a Turning Point USA Chapter on campus, but have been obstructed in the recognition process by the campus student government. The decision against enactment was based in part on debatable media rhetoric that mercilessly attacked major national Turning Point USA figure Charlie Kirk and inaccurate allegations that members of Turning Point were part of the January 6 riot at the capitol. Sentiment seeking to justify the decision was based on alleged opportunities for division on campus on heated issues that Turning Point allegedly promotes. Per the Turning Point mission statement, its goal is to “educate students about the importance of fiscal responsibility, free markets and limited government.”[1] This is not a militant organization nor should be classified as one. Relying on resources from bias left-wing articles as support for a misguided student government decision, while at the same time incorporating defamatory and inaccurate language about one of Turning Point’s major national leaders is wholly unacceptable.

            The students at St. John’s are just seeking for their voice to be recognized on campus and for an opportunity to promote their message in a respectful way. Currently, on campus St. John’s recognizes the Roosevelt Institute, an organization that promotes left leaning values and principles. While it would not be acceptable if right leaning student government leaders sought to “cancel” or obstruct recognition of this student group based on its perceived disagreeable and controversial views, the same courtesy should be shown in the present situation by left leaning student government leaders and their approach to the recognition process of Turning Point USA at St. John’s University.

           The university setting should be a place of a respectful debate and dialogue on major issues that will help shape the compass of students as they approach their professional lives. In the professional landscape, no matter what career one pursues they are bound to encounter those of different philosophies. Respect for differing viewpoints in the university setting is preparation for this critical step in professional and personal growth.

          President Ronald Reagan visited St. John’s University on March 25, 1985 and gave an address to the students. One quote really stood out and we would be wise to consider it today. President Reagan gracefully articulated that “we’re a people who’ve discovered anew what a deep foundation freedom is and how we cannot live without drinking deep from it.”[2]

Let us not leave our students and our future leaders thirsty.


[1] https://www.tpusa.com/ourmission

[2] https://www.reaganlibrary.gov/archives/speech/remarks-students-and-faculty-st-johns-university-new-york-new-york

Is the New Jersey Reproductive Freedom Act Really Freedom?

The New Jersey Reproductive Freedom Act is a proposed law that would strengthen the right to abortion in New Jersey and improve access to the practice by codifying the elimination of various bureaucratic procedural hurdles. It would, however, have a detrimental impact to religious entities and interests with compromising conscience protections. This piece will cover some aspects of the bill that standout and should be cause for further critical reflection.

We begin with New Jersey state and federal case law that has served as a precursor for this proposed legislation.

Case Law

State

In Right to Choose v. Byrne, 91 N.J. 287 (1982) the New Jersey Supreme Court considered the question of the validity under the New Jersey Constitution of a statute that prohibits Medicaid funding for abortions “except where it is medically indicated to be necessary to preserve the woman’s life.” N.J.S.A. 30:4D-6.1 (1981). Medicaid paid for the costs of all childbirths and abortions to save the life of the mother but, because of the statutory prohibition, it did not pay for those therapeutic abortions needed to protect the health of the mother or for elective, nontherapeutic abortions. The court would, however, eliminate this barrier and ruled: “N.J.S.A. 30:4D-6.1 violates equal protection of the laws under the New Jersey Constitution by limiting funds to abortions medically necessary to preserve the mother’s life. We construe that statute to require Medicaid funding of all abortions that are medically necessary to preserve the mother’s life or health.”

In Planned Parenthood of Central New Jersey v. Farmer, 165 N.J. 609 (2000), the plaintiffs challenged a state statute that conditioned a minor’s right to obtain an abortion on parental notification unless a judicial waiver is obtained, but had imposed no corresponding limitation on a minor who sought other medical and surgical care related to pregnancy and her child. N.J.S.A. 9:17A-1;  §§ 1.2 et seq.  The New Jersey Supreme Court ruled that the classification created by the Legislature burdens the “fundamental right of a woman to control her body and destiny,” Right to Choose v. Byrne, 91 N.J. 287, 306, 450 A.2d 925 (1982), without adequate justification and cannot be sustained against plaintiffs’ equal protection challenge.

An unmarried, pregnant minor was now able to give consent to hospital, medical, and surgical care related to her pregnancy or child, without the need to notify her parents.

Federal

In Planned Parenthood of Central New Jersey v.  Farmer, 220 F.3d 127 (3rd Cir. 2000), the Third Circuit reaffirmed the ruling of the lower New Jersey federal district court in Planned Parenthood of Cent. N.J. v. Verniero, 41 F.Supp.2d 478, 504 (D.N.J.1998) which invalidated the New Jersey Partial-Birth Abortion Ban Act of 1997.

New Jersey’s partial-birth abortion statute prohibited “an abortion in which the person performing the abortion partially vaginally delivers a living human fetus before killing the fetus and completing the delivery.”  N.J.S.A. § 2A:65A-6(e).   The Act purported to define the phrase “vaginally delivers a living human fetus before killing the fetus” to mean “deliberately and intentionally delivering into the vagina a living fetus, or a substantial portion thereof, for the purpose of performing a procedure the physician or other health care professional knows will kill the fetus, and the subsequent killing of the human fetus.”  N.J .S.A. § 2A:65A-6(f). The Act provided a single exception whereby this otherwise banned procedure may be used:  namely, when the procedure “is necessary to save the life of the mother whose life is endangered by a physical disorder, illness or injury.”  N.J.S.A. § 2A:65A-6(b). The Third Circuit deemed it unconstitutional due to it being (1) void for vagueness; and (2) placing an undue burden on a woman’s constitutional right to obtain an abortion.

These cases are very important as it now relates to the proposed New Jersey Reproductive Freedom Act. The court decisions to invalidate the Partial-Birth Abortion Ban Act of 1997 specifically with regards to parental consent and the vaginal time frame of banning an abortion would now be codified. This would provide a bulwark in the statutory law governing abortion in this state despite the outcome of a potential future U.S. Supreme Court decision that could return the issue of abortion to the states as was the practice pre-Roe and that could encourage further fetal protections.

Some New Jersey Reproductive Freedom Act Points

Some other major points under the New Jersey Reproductive Freedom Act are provided as follows:

“The State: 

(1)   explicitly guarantee, to every individual, the fundamental right to reproductive autonomy, which includes the right to contraception, the right to abortion, and the right to carry a pregnancy to term;

(2)   enable all qualified health care professionals to provide abortion services in the State;

(3)   require all insurance carriers to provide coverage both for abortion care and for a long-term supply of contraceptives”

…..

The bill also makes clear that a fertilized egg, embryo, or fetus shall not have independent rights under the laws of the state of New Jersey. The bill would also amend the existing law pertaining to autopsies and medicolegal death investigations to eliminate the requirement that a medicolegal death investigation be conducted in a case where a fetal death occurs without medical attendance. A final major component of the bill, is potentially broadening the nature of the medical provider that would be legally permitted to perform abortions which raises similarities with the New York abortion law passed a couple years ago.

NJ Reproductive Freedom Act Imposes Burden on Religious Interests

The NJ Reproductive Freedom Act imposed a significant burden on faith interests.

Per the text of the NJ Reproductive Freedom Act with clarifications:

A religious employer may request, and a hospital service corporation, pre-paid prescription service organization, individual health insurer, carrier, group health insured, health maintenance organization (*we will call X) shall grant, an exclusion under the contract for the coverage required by this section if the required coverage conflicts with the religious employer’s bona fide religious beliefs and practices.  A religious employer that obtains such an exclusion shall provide written notice thereof to subscribers and prospective subscribers, and “X” shall provide notice to the Commissioner of Banking and Insurance in such form and manner as may be determined by the commissioner.  The provisions of this subsection shall not be construed as authorizing “X” to exclude coverage for care that is necessary to preserve the life or health of a subscriber.  

In sum, a religious employer may request an exclusion, BUT, in requesting exclusion it is facilitating coverage with notice to the subscriber, potential subscriber and Commissioner of Banking and Insurance. This notice would then allow for some form of the contraceptive/abortifacient service requested by the subscriber to be provided even if not directly from the religious employer. The concepts of notice and facilitation themselves arguably can compromise religious conscience decisions as presented here.

Furthermore, the clause regarding “preserving the life or health of the subscriber” also raises issues. The “life or health of the subscriber” is not adequately defined. One must consider who will in fact be determining that “preservation of life” concept and how many medical professionals must agree that these steps are “necessary”.  This clause may be ripe for abuse. One must also consider that some faiths do not hold in their tenants any exception for an abortive procedure. The conscience and religious interests conflict with the law and are never fully resolved. In sum, there are not adequate facilitation protection interests in this bill. Faith entities would still be involved through notice with the coverage of a contraceptive/abortive procedure with or without an interest concerning the life of the mother.

How the U.S. Supreme Court has Considered Contraceptive and Abortifacient Challenges

The U.S. Supreme Court has dealt with related issues in the Burwell vs. Hobby Lobby matter and the Litter Sisters of the Poor litigation, in both of those situations stemming from the conflicts caused by the Affordable Care Act (ACA).

In sum, Hobby Lobby concerned a challenge by closely-held corporations that objected to providing some forms of abortifacient and contraceptive coverage to employees on the basis of religious beliefs. The court found that there was a least restrictive means of implementing the government’s interest in offering the coverage that would not substantially burden religion. The court applied its reasoning under the Religious Freedom and Restoration Act (RFRA) and the mandate to provide the contraceptive coverage as provided under the ACA was invalidated as to closely held businesses expressing their religious objections.

In sum, the Little Sisters of the Poor litigation has also dealt with fallout from the ACA. In this matter, the seminal issue was the requirement under the ACA of religious non-profits to complete a form, thus offering notice to the federal government of their intention to not provide contraceptive coverage and requesting an exemption. The federal government’s grant of the exemption, however, would enable it to find another provider for coverage even if not specifically the Little Sisters of the Poor. The Little Sisters of the Poor believed that they, therefore were part of the facilitation process that would be against their beliefs.

The Supreme Court has addressed this matter in a procedural context by focusing on legal flexibility of agencies in issuing regulations on the substance of wider or more narrow exemptions. Factually, the case is most similar to the issues potentially stemming from the New Jersey Reproductive Freedom Act, however, the Supreme Court has largely to this point not offered a definitive ruling on the core of the issue this matter presents. If the New Jersey Reproductive Freedom Act becomes law, it would be a good opportunity for suit to be brought in the hopes the Supreme Court would then issue more clarity. Defining the nature of facilitation and how bound up in substance it is to burden enumerated First Amendment Free Exercise protections would go a long way towards settling an understanding of this conflict.

Conclusion

The New Jersey Reproductive Freedom Act would codify the trend of controversial court decisions involving the state of New Jersey both at the state and federal level. One could argue that the substance of these decisions was not the soundest legal framework especially as we have come to understand more about the science of fetal life in the womb. This bill should invite debate and our leaders would be wise to listen to the arguments because on the surface it appears as a hasty response to the potential of the U.S. Supreme Court returning more of the issue of abortion to states (pre-Roe) or at the very least issuing a ruling on greater fetal protections. The New Jersey Reproductive Freedom Act does not address comprehensive scientific advancements that have surfaced since the time Roe v. Wade was decided. In addition, it presents the opportunity for further conflicts with faith entities as they wish to exercise their enumerated right to Free Exercise.

Legacies Reconsidered: Joseph McCarthy

The stories of the late U.S. Senator Joseph McCarthy and the Red Scare have been widely discussed and often panned by several in historical commentary. They center around the growing communist influence within the confines of the U.S. government and several pillars of American life in the late 1930s through the 1940s and culminating with the senate hearings of the early 1950s that mainstreamed this concern. Often McCarthy is described as fanatical and way out of line for his accusations and allegations of suspected perpetrators. Some of his frequent targets included those in various agencies in government; the military and American social life. After the strain from the hearings Senator McCarthy succumbed at the young age of 48 in 1957. He battled a variety of medical problems, some that were aggravated by the stress and anxiety of the hearings.

In this piece, however, we offer a brief reconsideration of McCarthy and the anti-communist crusade that he stood for based on providing some empirical facts researched from first-hand accounts such as the work McCarthy[1] by Roy Cohn (who served as chief counsel to McCarthy during the hearings) and The Autobiography of Roy Cohn[2] by Sidney Zion. This reflection will add to the commentary and debate on the McCarthy legacy and hopefully will encourage the reader to reflect on contextual issues that are often ignored in modern discussion. We will largely focus here on a few elements of the Army-McCarthy hearings, a major episode that contributed to the present understanding of his legacy.

A main criticism of McCarthy has been his combative and bombastic style during the Army-McCarthy hearings in which he communicated his accusations. It unsettled several members of Congress and the media were eager to assist in clouding his image by presenting him in the light of a relentless zealot that sought to take no prisoners. In the modern day, we have seen similar criticisms appear when considering the legacy of former President Donald Trump. The substance is often ignored or diluted by a harsh reaction to communicative style. McCarthyism has now become a punchline word in the dictionary and today just uttering the name Trump has frequently become synonymous with the rising “cancel culture”.

In regards to McCarthy, however, one must first ask the question- how did this begin? A rising popular senator from Wisconsin who was very close with the Kennedy clan had defeated a popular incumbent and later decided to stake his career on this risky and controversial initiative. In McCarthy, his chief counsel to the hearings, Roy Cohn who ironically would later advise a young Donald Trump, stated it all began with an FBI contingent concerned about the national security of the nation met with Senator McCarthy and provided him with information on communist operatives working in the U.S. that had been vetted and investigated by the FBI in the 1940s. J. Edgar Hoover, longtime head of the FBI had begun this initiative at the direction of President Franklin D. Roosevelt. This FBI contingent, however, was unsatisfied at the persistent stalling and often minimizing the importance of addressing the issue, and sought to find a leader in Washington willing to mainstream and shed light on the problems. Prior to McCarthy, other senators had chosen to not seriously address the situation out of fear for their political careers. It took some convincing as McCarthy did not begin his senate career focusing on the issue. Once he thoroughly found himself studying and immersing himself into the intelligence, however, he decided to proceed. As chair of the Senate Permanent Subcommittee on Investigations, he was in a position to use resources and thoroughly conduct an investigation into this issue. Little did he know the firestorm that would be set off that would draw him into conflict with both sides of the aisle and a Republican administration headed by President Dwight D. Eisenhower.

A Few Points to Consider

In McCarthy’s crusade against communist infiltration, several substantive issues were brought to light. This episode also showcased the efforts of the Eisenhower administration, its allies and the media to release relentless attacks on McCarthy and present him as so far outside the mainstream with his goals that he should not be respected. The following are just a few of the many major areas in which McCarthy was drawn into conflict for seeking transparency for situations in which he believed the United States was at risk.

G. David Schine

G. David Schine was a member of McCarthy team along with Roy Cohn that worked to tackle the growing communist threat. One of his major missions was accompanying Roy Cohn overseas to Europe to investigate U.S state-sponsored libraries and education resources that had promoted communism. This was clearly an interest contrary to the U.S.’s formal anti-communism foreign policy. The media had dogged and sensationalized the work of Cohn and Schine throughout this trip in which they found a large degree of evidence. Cohn provides a comprehensive first-hand account in McCarthy.

Schine proved to be a strong asset to the team and also became a good friend of Cohn, but unfortunately was caught in the middle of the heated conflict between the McCarthy team and the Army during the Army-McCarthy hearings. As Cohn categorized it in his autobiography, Schine would essentially become a “hostage” of the forces acting against McCarthy. For his great work on the McCarthy team, Cohn as Chief Counsel to McCarthy recommended him for a commission in the Army after he was drafted in 1953. It was typical practice that politicians would recommend individuals for this designation from time to time in gratitude for the work they have performed in governmental capacities. As McCarthy and Cohn were putting pressure on the Army to challenge it into providing some insight into intelligence failures and infiltrations in their ranks most notably through the Irving Peress affair which will be discussed later, the Army with the support of the Eisenhower administration and the media detracted with essentially manufacturing the Schine scandal. The Army had sought to pressure McCarthy through Cohn based on allegations of improper pressure exerted for Schine’s commission by Cohn. The relentless attacks during the Schine affair on McCarthy and Cohn were truly a dark point in American history.  Allegations of corruption for seemingly a routine act by a politician were baseless, but detracted the attention from the major issue of the Army’s failure for effective oversight to minimize the communist threat.

Army Failure- The Irving Peress Affair

The Irving Peress affair was one of the major areas of McCarthy’s focus when investigating the alleged communist infiltration in the Army. It centered around Irving Peress, a dentist believed to be a member of the communist movement and who helped facilitate its cause as verified by members of the U.S. intelligence community. Pursuant to policy, Peress was eligible for automatic promotion as a medical professional but was under investigation based on his application responses in which he plead the 5th Amendment in regards to inquires related to communist and subversion activities. Nevertheless, he was still granted the promotion, thus creating a quandary and further reports and complaints were submitted about his potential communist activities. The Army then resolved to grant him an honorable discharge as a means to remedy the situation, however, McCarthy demanded accountability at the hearings on this bureaucratic failure and sought to assess if this was a systematic issue that required the Army to conduct serious reforms. It came to light later that the thorough investigation conducted by McCarthy and verified by intelligence on Peress was not a red herring, but in fact proved he was connected with communist activity. The Army had very strong allies in the White House and media and had pushed back on McCarthy’s crusade. The Schine affair was part of a wider counter-initiative to discredit McCarthy and Cohn. McCarthy would continue to raise the issue of other security breaches within the Army, but would find himself facing powerful establishment forces that sought to shield these issues from the public.

Ironically, General Ralph W. Zwicker had notified McCarthy of the Peress problem which spurred the investigation that revealed errors on the part of the Army. When pressed on these issues later during the hearings, Zwicker succumbed to outside pressure and refused to commit to this initial position. McCarthy was forced into a difficult position and could not burn his source out of fear that other sources would soon follow, thus compromising further intelligence gathering. More examples of blatant corruption are discussed in Roy Cohn’s works.

Annie Lee Moss

Annie Lee Moss held a position in the government working with Pentagon coding and suspiciously had been promoted from an unrelated cafeteria position. An undercover FBI agent testified to Moss’ communist membership in the 1940s and involvement with communist initiatives before Congress in 1954. Moss had denied these claims. The FBI testimony was corroborated by another witness and there was also a Department of Justice file on her. Politicians and the media painted Roy Cohn as a bully for pressing forward on behalf of McCarthy regarding this investigation during the Congressional testimony.

There were also claims that the FBI agent had perjured herself when testifying as to Moss’ activities. Some politicians even offered employment to Moss if she was to be reassigned or removed from her present position based on her alleged “mistreatment” during the hearings. In 1958, the Subversive Activities Control Board, a committee tasked with investigating communist infiltration and compelling the American Communist Party to register with the government, formally cleared the FBI agent of any perjury allegation as relating to the Moss matter. The board had in its possession considerable documentation supporting the testimony. McCarthy died in 1957 and would not live to see the vindication bear fruit.

Final Thoughts-A Legacy Reconsidered

McCarthy was ultimately censured by the Senate as a result of the fallout from his anti-communist crusade and hearings. His legacy has been sadly remembered in the history books as a sensationalist that fanatically alleged communist infiltration in the U.S. government and other areas of American life. This is an unfair verdict that has persisted for decades. As evidence has developed over time, however, we owe it to ourselves as Americans to revisit his legacy and respect his initiative to bring greater transparency to government. There was evidence of communist infiltration that he chose to bring to light and as provided in first-hand accounts, he was supported by the intelligence community. This prompted him to first tackle the issue.

While he may have exaggerated in some contexts and was a brash communicator, there were indeed several problems with infiltration in the U.S. government during WWII and the post-WWII era. If able, it is highly recommended to pick up copies of McCarthy by Roy Cohn and The Autobiography of Roy Cohn to inform from a first-hand perspective on the backstory of this often misunderstood issue in modern American history.


[1] Cohn, Roy. McCarthy. New American Library, Inc., 1968.

[2] Zion, Sidney. The Autobiography of Roy Cohn. Lyle Stuart, Inc. 1988.

Legacies Revisited: Hoover and The Great Depression

By: Chris Gomez

The 1920s were a turbulent period of economic growth, excess and then ultimately, calamity. In our history books, the severity of the Great Depression is typically laid at the feet of President Herbert Hoover. Is this scarring accusation correct or a misnomer? We will discuss Hoover’s legacy.

Hoover began his career in politics with his assignment to head the Food Administration during World War I under President Woodrow Wilson. This experience had a profound effect on him and did influence his personal views on humanitarian issues which would later gain him acclaim. He became sympathetic to the idea of the state as an instrument to cure poverty and suffering, but did not disregard his view that a free market system centered on individualism and less government intervention was optimal. Hoover’s tenure as Commerce Secretary began in 1920 under President Harding and later Coolidge. This began a period of overall success for the American economy. This success, however, was not to last as we consider some of the unsound fiscal policy that became prevalent throughout the world. To understand President Hoover and his ensuing policy priorities we must examine the pre-existing economic conditions globally and domestically.


When considering the global conditions, prior to World War I, many countries operated on the gold standard where paper currency was linked to and could be exchanged for an amount of gold. The main benefit of this system was that there were checks on inflation due to the limited ability to expand the supply of money. In order to fund the war effort, several of the countries, with the exception of the U.S., temporarily left the gold standard and let their currencies trade without backing, also known as fiat currency. The ensuing period of the 1920’s saw an attempt by Britain to return to the gold standard at a price economically impossible due to the wartime inflation. The idea was to go back to the legitimacy of the gold standard while forsaking the rule of convertibility and breaking the checks on inflation. Britain was attempting to reassert itself as the number one global superpower by enjoying the immediate economic benefits of inflation while pushing off the long term effects onto other countries. Several central banks of the nations were part of this collaborative effort. This, along with several other issues such as Germany being unable to independently pay its excessive war reparations created economic problems in Europe that would create a cycle of unpaid debt that would also impact the U.S. The global economic picture was beginning to appear bleak.

In terms of the domestic context, as Commerce Secretary, Hoover helped promote the deregulation, low tax rates and overall economic freedoms prevalent during the Harding and Coolidge administrations. He also warned of excessive stock speculation in the domestic U.S. and encouraged sound, but not overzealous government policy to monitor the situation. This was a good concept, but unfortunately it was ignored by others in the respective administrations. These administrations failed to adequately address the growing problems that were beginning to take place in the U.S. They did not adequately consider fair regulation of the market system and this would later become a major area of concern. Once Hoover assumed the Presidency, the stock market crash became a reality. The agricultural market in the U.S. was suffering and the years of unregulated stock speculation caught up with the U.S. economy.

In defense of Hoover, he was simply a man in the wrong place at the wrong time. Major global culprits behind the Depression were central banks that helped facilitate unsound European economic policy in addition to overzealous nations placing unrealistic reparation expectations on Germany following World War I. Debts were not repaid and this created an unhealthy economic chain reaction. These factors greatly unsettled the global economic climate. Domestically, there was not fair monitoring of stock speculation during the decade leading up to the crash and the agricultural sector was suffering. In the early stages of Hoover’s presidency, he was greeted with the stock market crash and arguably did not have enough time to fully apply his policy agenda to address it. To claim that he was the cause of the Great Depression, is wholly inaccurate and distorts the historical record. Ironically, as established, in the decade preceding the crash, Hoover was one of the minority voices in two administrations voicing his concern about the direction of the U.S. economy. If his propositions were applied sooner, it may have provided meaningful reforms that may have staved off some of the worst effects of the Great Depression, if not not rebounding from it in a shorter timeframe.

Now let us analyze Hoover’s actions after the crash. Hoover did not create the Depression but a question lingers; did his policies as President make it worse? Overall, the short answer is no they did not, but he was not given enough time to apply all his policy goals which may have shortened its timeframe. Hoover was a man greatly concerned about the effects of overzealous government intervention in the economy believing that it was a gateway toward socialism. Initially, he sought to continue promoting tax cuts as a means to ease the burden on the nation. One of his central focuses was also on state and local governments to work in collaboration with the federal government and private sector to address the economic issues facing the nation. He was adamantly against a central planning big government model to address the issues and post-presidency he would continue to be critical of this philosophy. During his term as he sought to lead the nation out of the Great Depression, he frequently reached out to major business leaders in the private sector and promoted laws that would focus on state centered relief disbursements.

He did, however, sign into law the enactment of the Reconstruction Finance Corporation, a government organization that was meant to invest in railroads, insurance companies and other large businesses as a way to limit the fallout. This was one of his few major legislative initiatives that sought to create a strong federally infused boom to the economy. His (mostly) non-interventionalist policy priorities, however, led to him being ostracized by the people and not re-elected for a second term. After President Franklin D. Roosevelt was elected, the Depression would continue for eight more years leading up to the dawn of WWII. The Roosevelt era would usher in the New Deal and a large scale government infusion into the economy.

Hoover represents an important figure in history. Hoover’s overarching vision was to rebuild the economy with policy encouraging the federal government to serve a collaborative, rather than central role. If he was able to fully integrate this into action, it could be argued that the Great Depression may have been significantly shortened. It could also be argued that Roosevelt’s actions that created a greater expansion of government into economic matters may have slowed the recovery. Hoover saw the New Deal as the road into socialism for the United States and spoke out against the efforts of Roosevelt. Politically ruined as he was, this did not garner much attention but his ideals have survived into today.

Today, the Hoover Institution stands at Hoover’s alma mater Stanford and promotes the ideas of free markets and individualism. It continues to carry out his legacy. Hoover was not a perfect President, yet there is a lot to be gleaned from his policy views and a large sense of unknown regarding what would have become of his policies if they had been given more time to work. His free market goals with an intent to reign in overzealous government intervention were optimal and continue to be considered today. To conclude, Hoover is a misrepresented President and contributed a lot to the intellectual forum that considers sound free market economic policy.

Pack the Court? Don’t Pack the Court, Baby

By: James West

Hamilton wrote in Federalist No. 71, “When occasions present themselves, in which the interests of the people are at variance with their inclinations, it is the duty of the persons whom they have appointed to be the guardians of those interests, to withstand the temporary delusion, in order to give them time and opportunity for more cool and sedate reflection.” While many modern progressives would jump at the chance to quote a fictionalized version of Hamilton, it may behoove them to maintain a stricter adherence or understanding of his words.

To say that the fabric of our nation is under attack is not hyperbolic, though the sentiment needs some clarification to make it more well understood. What do I mean by “fabric of the nation?” An answer in two parts: first, Federalism. The delegation of powers and responsibilities between the Federal and State governments in order to ensure a more even-keeled spread of power. This has, of course, been “under attack” – and perhaps even partially destroyed – by the 17th Amendment and progressive agendas dating back to Wilson. That being said, the philosophical martyr that is Federalism is not the subject of this writing.

The second part of the “fabric of the nation” is the Separation of Powers, the delegation of powers and responsibilities between the three branches of government. It is an unfortunate reality that this foundation of our country’s government has been relegated to, essentially, a footnote in the American education system. We learned the branches, but never why they were separated in the first place, the philosophy behind why they were given the responsibilities they were and the dangers in blurring the lines between them. And so therein lies a major contributing factor as to why our fabric, as described above, is “under attack.” Now, perhaps there is some nefarious agenda to pool power in a massive oligarchical scheme. Perhaps there is a coordinated attack by outside parties to dismantle and disrupt how we operate in order to make us weaker. And, perhaps, there are elected officials and influential policy makers who know the risk of what the say and say it any way, not for a benevolent goal, but for selfish ends. While I am sure there is no shortage of the latter, Hanlon’s Razor presents a simpler explanation: never attribute to malice that which is adequately explained by stupidity. The “attack” is not like a line of missiles aimed at the front line, but more akin to a bear aimed at a screen door when it smells a fresh baked pie. The screen door is collateral damage to the bear’s end, and the bear knows not what it does – only the reward of pie.

With one party heading the Executive Branch, controlling (though less so than a few months ago) the House, and now the Senate, one obstacle poses a threat to the only bastion of objectivity blocking their agenda: The Supreme Court. The knob on the screen door. The pie is the agenda, and the claws and snout with which they rip through the screen like a less-competent Winnie the Pooh is court-packing. To quote a colleague, “I can’t believe we’re actually talking about that in 2020.” And we should not be – court-packing is logically incoherent, futile at best, and antithetical to American principles.

I understand how a “slippery slope” argument could easily become fallacious, and so I hold myself from saying “What are we going to have? A million Supreme Court justices?” But the argument holds that simply adding more justices leads to an incoherent outcome. The problem with court-packing is that it does not solve a problem of “not enough justices,” but solves a problem of “not enough justices that rule how we want, right now.” It is a permanent solution to a temporary problem (“problem” being used loosely). It does not address that there will always inevitably be some sort of inequity within a court – any court – with regard to the judicial philosophy being applied when rendering decisions. The closest mechanism for eradicating that inequity can be found in the Delaware State Constitution, which requires that no more than a “bare majority” – a “one-seat advantage” – may be held by the same political party on any given Delaware court. This mechanism (which made its way to the Supreme Court in December in Carney v. Adams, but was remanded based on standing of the plaintiff) ensures that on a five-member court, for example, there can only be a 3-2 majority. However, therein still lies some inherent inequity in the judicial philosophies of the judges. This inequity is impossible to eradicate, only to swing in the other direction. Like any pendulum, it will inevitably swing back.

The incoherence of idea of court-packing is supplemented by its futility – as stated above, the result of the endeavor would only be temporary until judges die or retire and new judges are appointed and the pendulum swings again (or worse, that precedent for packing is established and each cycle we add more judges – maybe not a million, but 15? 17?). But moreover, court packing assumes that each judge is going to rubber stamp an opinion and will inevitably rule one way every single time. To the unenlightened, this would assumedly be accurate and happen all the time. Fortunately, it’s not true. Justice Breyer often spoke in his debates and discussions with Justice Scalia however the Supreme Court rules unanimously – *unanimously* –  about 40% of the time. That’s 9-0 opinions, 40% of the time. It speaks nothing of the unexpected 8-1’s or 7-2’s, or even 6-3’s. We’ve been led to believe that the Court ruled 5-4 on everything, with a liberal wing and a conservative wing and one or two swings in the middle, and that that’s way it has to be and should be. The narrative now is that “balance” has been thrown off by the Court’s alleged 6-3 inequity, and that must be resolved. The facts dictate this is an exercise in futility. Not only is there no *guarantee* that the Court will rule 6-3 on the issues, but history suggests that they would not. We have seen that in action – Gorsuch, Kavanagh, and Barrett have issued rulings contrary to Trump’s interests. It’s almost as if they believe they are an independent, neutral branch of government.  

Court packing has no pragmatic end – except one. The threat of court packing is more combustible than the packing of the court itself. That much is historically true – see, FDR’s plan to add a justice every time one reached 70 and would not retire (a switch in time that saved nine, indeed). It was antithetical to American principles then, and its antithetical now. There is always going to be an inequity in the court, but in the same way attempts to remove that inequity are futile, the line is fine between a natural inequity over the progression of time and an inequity as a result of one Executive’s undue influence over a completely separate branch of government. Court packing – especially FDR’s plan – is a complete blurring of the separation of powers. It would grant undue influence from one branch over the other, and it would cause the judiciary to be a tool of the Executive to effectuate the rulings that they want. You may ask, “But James – isn’t that already the case? Doesn’t the President appoint who sits on the Supreme Court, and so the influence is Constitutionally based?” Yes and no. The problem is not the *influence* of the President on the Supreme Court. That influence is always there, just as each branch influences the other as they keep themselves in check (or are supposed to). But packing the Court would lead to an *undue* influence, and influence so great that it can only be called control. Many on the Left already view the Supreme Court as a Plan B Legislature, a way to get things done when the pesky Democratic process just will not move quickly enough. That is not what it is, and it is what it can never be. The sanctity of the Court’s objectivity must be maintained.  

And, of course, the undue influence would be shifted once a President from a different party was elected. The pendulum swings. What makes our country our country, or our Union our Union, has been eroded for decades. Mobs burn and torch small businesses, mobs storm the Capitol building, and the trust in our electoral system is at an all time low. Our division is stark, social media is making it worse, and everyone has opinions, but no one has convictions. After years of calling Trump a fascist and a dictator, the same people will be complacent or supportive of power continuing to centralize and acquiesce in the Executive. Court packing now would be just as if not more dangerous than when it was threatened by FDR. It’s a danger to the Separation of Powers and I implore all to think twice, especially Majority Leader Chuck Schumer, before suggesting it further.

The Next Potential SCOTUS “Adoption” of Religious Freedom

Disputes over religious freedom have intensified in recent years following the U.S. Supreme Court’s decision in Obergefell v. Hodges that recognized a Constitutional right to same-sex marriage. Most of the nation is aware of the ensuing Masterpiece Cakeshop litigation regarding the dispute between a Christian baker and a same-sex couple over the refusal to bake a same-sex marriage wedding cake. While ruling for the baker there, the Supreme Court unexpectedly sidestepped core First Amendment issues such as free speech and free exercise. It largely ruled on a procedural technicality focusing on unfair bias on the part of the state commission that had brought action against the bakery. In the new disputes revolving around religious freedom, the Supreme Court may take a different approach. In this piece, we will focus on Fulton v. City of Philadelphia, which concerns a Catholic adoption agency in Philadelphia.

Background

In Fulton, the U.S. Supreme Court may address more centralized and substantive Constitutional issues. Here, it will assess a dispute between Catholic Social Services (CSS) and the city of Philadelphia regarding the shut-down of a religious based foster care agency over closely held religious beliefs. This case will also be an early indicator of the impact of the newest Supreme Court Justice Amy Coney Barrett on the Supreme Court’s direction. Early indications are based on oral arguments and the present jurisprudence of the Supreme Court, that this decision will come out to 6-3 in favor of CSS.

There is a question, however, as to how narrow or broad this decision will be and whether it will overturn the controversial Employment Division v. Smith matter from several years prior, most notably authored by Justice Scalia that held neutral laws of general applicability do not violate the Free Exercise Clause.  That case dealt with a substance called “peyote’ that was ingested in a Native American ritual, but also prohibited by state law. This case has aroused much debate and we will discuss a projected impact it will have on this matter. Perception of this case will ultimately be shaped on how the concept of “neutral” is defined.

CSS is a foster care agency affiliated with the Catholic Church and has been a staple of Philadelphia since 1917.  Its foster care services are connected with Catholic doctrine and teachings, thus, the position of the foster care agency is to not provide an endorsement certification for same-sex couples for the foster child placement process. The Philadelphia local government and government agencies have pressured CSS to alter its position and provide the endorsements.  The city government has gone so far as to stop allowing foster children to be placed with families endorsed by CSS. The city cites to its Fair Practices Ordinance that prohibits discrimination on the basis of sexual orientation for support for its position. It should be noted, however, that this has never been applied to adoption agencies. Furthermore, per the facts presented it has been understood that throughout the course of its presence in the Philadelphia community, CSS has never been approached or challenged by a same-sex couple with regards to its policy. During recent oral argument some justices queried whether the city of Philadelphia acted overbroadly and even seemed to be “picking a fight” by the position it has taken against CSS.

Issues

The nuanced issues the Supreme Court will be tackling in this matter are presented as follows:

The Supreme Court will consider whether the plaintiff’s right to free exercise was violated in a discriminatory matter by the city of Philadelphia.

First, there is a question as to if the government would undertake the same conduct versus an entity of another religious persuasion or whether the alleged anti-discrimination law itself is not neutral and generally applicable thus it should be invalidated in its entirety. The latter would assess if this law is in accordance with Employment Division v. Smith and would not necessarily result in that matter being overturned.

Second, there is an issue as to whether Employment Division v. Smith should be revisited and this path would assume that applying the standard and that line of reasoning would be detrimental to plaintiff and violate its enumerated right to free exercise. The Court would then have to revisit the standard and weigh if it remains compatible with the right to free exercise.

Finally, an issue presented is whether the government violated the First Amendment by conditioning the plaintiff’s right to participate in the foster care service by violating their religious beliefs by statements and actions.

Paths of Analysis

Many in the scholarly community have called for the overturning of Employment Division v. Smith because they find it infringes on the right to free exercise. As hostile religious sentiment towards organized religion has developed in society since that decision their argument becomes plausible. The view of religious liberty disputes have evolved. No longer are headlined religious disputes commonly brought on substance abuse comingled with religious beliefs, rather in recent years the focus has been on the fallout of the same-sex marriage decision in Obergefell. Discrimination claims are now being brought against religious small businesses and religious inclined business owners regarding the services they choose to provide. The stakes have been raised in these increasingly divisive litigations. The vague language of Smith regarding a law’s neutrality and general applicability could conceivably be utilized by a more activist judge to umbrella what is at issue in Fulton. The unpredictability and questionable application of this standard forms a basis to their criticism. It can be argued, however, that Justice Scalia may not have had the foresight when Smith was decided that such a ruling would have formed a basis for the potential of a broader based litigious assault on religious freedom interests.

There are other issues that should be considered, however, that could lead to productive debate on the matter. First, whether the city law in of itself has been weaponized and applied to attack the core of a faith belief. It would then not be classified as neutral and generally applicable. Under the facts of this matter, the Philadelphia law at issue has never been applied to adoption agencies. A plausible remedy could therefore find the city of Philadelphia in violation based on its application of the ordinance without disturbing Smith.

 Second, the concept of marriage between a man and a woman is fundamental to Christian, specifically Catholic teaching.  Applying the broad, largely undefined sexual orientation class in the law against a faith entity invites conflict especially if there is no carve out for a religious exemption under the law. This is not representative of neutrality and general applicability. While Catholic Church teaching specifically does not accept sexual orientation discrimination, an activist government actor could broadly expand an understanding of this class to cover the construct of same-sex families. This would then prove problematic for religious entities and compromise their mission for helping children in adoption and foster care agencies.

The faith-based foster agency was not basing its endorsement decision on the basis of sexual orientation as an individual discriminatory matter, it was basing its decision on its theological understanding of family life. A same-sex inclination of an individual is distinct from manifestation of orientation that encompasses a form of family life that the Catholic Church does not recognize. Manifestation itself is not the same as orientation.  This is the position of the Catholic Church, thus in principle an allegation of sexual orientation discrimination against the Catholic Church should be dismissed.

The Catholic Church does not want to be a willing facilitator[1] and endorser of an interpretation of family life not in accordance with its teaching. This path would lead to the conclusion that the law as its written is not in compliance with Smith due to its obvious confrontation with religious interests and cannot possibly be applied in a neutral and general applicable matter unless undergoing serious revision.

Conclusion           

Overall, there are various interests at work here that will ultimately go into the Supreme Court’s final decision. It is highly likely that Chief Justice John Roberts will be in the majority of this opinion and vote in favor of the Catholic adoption agency. He has demonstrated a strong jurisprudential inclination in favor of religious freedom interests with the exception of the recent Covid regulation disputes. As Chief Justice and being in the majority, he would then have the option of assigning himself the majority opinion which would then in fact control how broad the ruling will be in favor of the Catholic adoption agency. He has presented himself to be more of an incrementalistic jurist during his tenure on the Supreme Court, less inclined to overturn long-standing precedent. Look for him to maintain the Smith precedent and rely on arguments focusing on how the Philadelphia law was not neutral and generally applicable. The law’s very nature without a religious exemption has created confrontations with religious interests. In addition, there is no demonstrated history of this law being applied towards adoption agencies, specifically religious based ones. He will likely find a path to highlight this issue and stop short of overturning Smith.

If, however, the Chief does not find himself in the majority or assigns the opinion to Justice Samuel Alito, who has penned several law and religion opinions, look for a more aggressive approach towards Smith. Justice Alito is known to be a stead-fast proponent of interpreting the Constitution to consider its enumerated Constitutional religious freedoms supported by the traditional understanding of the role of faith in our nation’s history. We will continue to follow this case and update you on its developments.


[1] As an aside, the facilitation argument has been considered in the Little Sisters of the Poor litigation that concerned providing contraceptive and abortifacient coverage against the Church’s beliefs. Not the same facts, but facilitation here is an interesting point connecting to faith interests.

Reflecting on the Jurisprudence of Justice Amy Coney Barrett

Justice Amy Coney Barrett has recently been confirmed to the U.S. Supreme Court and will likely have a profound impact on Constitutional law for years to come. Prior to being confirmed to the Supreme Court, she served as a judge on the 7th Circuit federal court, was a former Notre Dame law professor and former clerk to the late Supreme Court Justice Antonin Scalia.

She was nominated by President Donald Trump to fill the vacancy on the U.S. Supreme Court left by the death of the late Justice Ruth Bader Ginsburg. Justice Ginsburg was a liberal jurisprudential icon and the addition of Justice Barrett will likely shift the court in a more conservative constitutionalist direction. In this piece we reflect on Justice Barrett’s philosophy and consider a couple of her articles that she wrote as a law professor and a key opinion as a federal judge that gathered attention during her confirmation hearings.

The scholarly articles we will focus on are Precedent and Jurisprudential Disagreement and Congressional Originalism. In these works, she clearly demonstrates a respect for precedential value of prior court decisions, but would not shy away from revisiting them when the correct opportunities arose. She also clearly articulates in her works the distinct roles of the judiciary and legislature when assessing Constitutional issues and the distinct responsibilities of both branches when considering the value of precedent.

The decision we will focus on is her dissenting opinion in Kanter v. Barr which drew a lot of attention during her confirmation hearings. Much like her mentor Justice Scalia, in this opinion she provided an assessment that carefully considered the role of history.

Scholarly Articles

In Precedent and Jurisprudential Disagreement[1], Barrett focuses on an assessment of stare decisis (the method of interpretation of adhering to prior precedent) and how judges should properly consider it in cases and its limits. She opens by explaining that Constitutional cases are more subject to a close stare decisis analysis that could lead to re-contemplating precedent than statutory matters where the concentration is interpreting statutes passed by Congress. 

A goal of stare decisis is to resolve jurisprudential disagreements. A decision to overrule precedent, however, does not come lightly. From Judge Barrett’s view, there is a burden on those willing to overturn precedent to make a compelling and comprehensive case justifying the reasoning. An ideal view does not allow for disruptive action in Constitutional law just by a new majority without thoroughly vetted consideration. Reliance interests must be one of the factors in the decision-making process and requires reflection on the present societal and institutional investment in the prior decisions. A judge should strive to obtain a special justification if so persuaded to challenge the precedent. If there is material uncertainty within the decision-making process on whether to overturn the decision, maintaining the present standard would be the optimal position. She acknowledges, however, that a less extreme approach would focus on choosing to not extend precedent rather than overturning it. This is a more narrow and less controversial view. Naturally, the line of law then would no longer present the dominant standard to facilitate the adjudication of the area.

Judge Barrett is skeptical of the argument, however, that if the decision is made to overrule precedent, it affects the Court’s actual legitimacy. She states:

“I tend to agree with those who say that a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it.”

She does add, however, that consistent upheaval in the law would not be optimal, thus the emphasis on special justifications for challenging precedent. She also cites to our historical understanding of the Supreme Court in that overturning prior decisions is not “out-of-bounds”, but the decision to proceed in that matter can be categorized as “exceptional”.

Overall, when reflecting on Judge Barrett’s view on stare-decisis she takes a tempered, but realistic approach. While she acknowledges that the doctrine presents a compelling factor in Constitutional interpretation and circumstances are limited in which prior decisions should be overturned, she does not totally discount overturning prior decisions. For Judge Barrett, there must be comprehensive support for making this decision after deftly balancing reliance interests with the judge’s chosen method of Constitutional interpretation. A special justification may in fact be present in the appropriate situation and this is consistent with our understanding of the practice of the Supreme Court. Unlike what has been portrayed in some commentary outlets, this is very much a mainstream and respectable way of judging.

In Congressional Originalism[2], Judge Barrett discusses the interpretative theory of originalism and how it is considered by Congress when crafting policy and law. Judge Barrett begins by reflecting on the current meaning and application of the theory. The current interpretive style of originalism focuses on the original public meaning. It would require an assessment emphasizing the textual meaning at the time of ratification as a whole, broader than simply the intent of the framers. There is a concentration on historical context in helping to understand how the law should be interpreted today. Judge Barrett devotes the piece on considering whether legislators in Congress are bound to this interpretative style when passing laws and crafting policy or whether it is something only within the purview of the judicial branch.

Discussion is then provided on the concept of “super precedent” Supreme Court decisions and how Congress should handle them. You may recall this was a common topic during her senate confirmation hearings following her nomination to the U.S. Supreme Court. The defining qualities of super precedents are discussed and an evaluation as to the obligation of the legislators to uphold them or pass laws circumventing them is considered. Super precedents are classified as Supreme Court decisions invoking foundational doctrine and practice that have withstood the test of time. Judge Barrett categorizes them under five characteristics: (1) endurance over time, (2) support by political institutions, (3) influence over constitutional doctrine, (4) widespread social acquiescence, and (5) widespread judicial agreement that they are no longer worth revisiting.

Among the cases that Judge Barrett cited as falling under this standard are Marbury v. Madison, Brown v. Board of Education and the Civil Rights cases. These decisions have become a major component of the fabric of the law and have wide acceptance among the people of this nation. These cases will likely never be challenged and resurface on the Court’s agenda. Focused briefing is required for petitions to the Supreme Court and the Supreme Court has the authority to grant or deny certiorari based on the legal questions presented in a given petition. This undoubtedly presents a thorough filter that will maintain the super precedent. This is the core of how super precedent remains intact, not simply relying on the nature of a stare decisis assessment in the general sense of committing to blindly maintain precedent.

In terms of Congress, legislators can avoid passing laws that would entangle with super precedent by maintaining the presumption that the precedent is constitutional. Judge Barrett was careful to point out, however, that this does not mean the legislature classifies the precedent as an absolute, but rather it is settled in the sense of not requiring policy to address it. While Congress has the authority to reexamine them, by no means are they obligated to or in the case of super precedent, inclined to do so. The super precedent may in fact be contrary to the original meaning and failing to correct it, however, does not necessarily mean that the originalist legislator is in agreement with the flawed interpretation.

As a practical matter an attempt to reconsider, while possible is simply impractical given the circumstances. Just as the Supreme Court would only reconsider in response to a litigant’s petition, so too would Congress be likely to reconsider if pressured by the electorate. The nature of the issues are settled by a vast swath of electorate in cases of super precedent so pressure is unlikely. Judge Barrett, however, makes an able comparison- the judiciary and Congress can be moved (or not moved) by the people. It just depends in what form – whether it is litigants in the context of the court of law or elections when selecting representatives in Congress.

Judge Barrett further explains that the judiciary and legislature are not required by the Constitution to correct every constitutional error that may arise. Congress by its very nature considers political interests when determining when to devote time to address alleged constitutional errors. Until the time arises, questions are deemed settled.  This should not be construed, however, to conclude that Congress should be defying the Constitution, rather the central focus of the view holds that constitutional interpretations are subject to change and Congress has the autonomy to decide when to become entangled in the issues and perhaps apply the originalist view to the law-making process.

Case Law

During Judge Barrett’s confirmation hearings, a great deal of focus drifted towards some of her opinions as a 7th Circuit judge. We will cover her dissent in Kanter v. Barr[3] here. This one attracted significant attention during the hearings and concerned Second Amendment issues.

In Kanter v. Barr, Rickey I. Kanter pleaded guilty to one count of mail fraud under 18 U.S.C. § 1341. In his business, he submitted foot inserts to Medicare for approval before sending them to podiatrists. They initially failed the approval process.  Later, a new batch of inserts would be approved, however, Kanter had continued to sell the non-compliant inserts with marketing that they were Medicare approved. Kanter, however, had no history of any form of violent or domestic crimes.

Due to his felony conviction, he was prohibited from possessing a firearm under both federal and Wisconsin law. At issue in this case was whether the felon dispossession statutes— 18 U.S.C. § 922(g)(1) and Wis. Stat. § 941.29(1m) —violated the Second Amendment as applied to Kanter. The 7thCircuit ruled that even if Kanter could bring an as-applied challenge, the government has met its burden of establishing that the felon dispossession statutes are substantially related to an important government interest.

Judge Barrett dissented and relied on historical assessments to support her view that there should be a categorization of felons when pursuing a means of depriving them of their enumerated rights. She articulates that Kanter’s status as a non-violent felon should have been persuasive and his conviction of mail fraud bears no relationship to a substantial government interest in curtailing gun violence. She proceeds to cite to historical text in the early colonies that showed laws meant to disarm or keep weapons out of the hands of dangerous criminals. The historical record is inconclusive on removing weapons from all felons just because of the nature of being broadly categorized as a felon.

These legislatures “intended to disarm those who have demonstrated a proclivity for violence or whose possession of guns would otherwise threaten the public safety.” Public safety interests were a primary concern for these legislatures. Judge Barrett concludes that “absent evidence that Kanter would pose a risk to the public safety if he possessed a gun, the governments cannot permanently deprive him of his right to keep and bear arms.”

Judge Barrett is also critical of the majority’s opinion that relied on statistics claiming convictions of nonviolent felons can predict future violence. The majority relied on this to help illustrate the state’s substantial government interest in stopping gun violence. The statistics, however, did not differentiate between the non-violent felons to provide a comprehensive assessment. For example, one could reasonably consider that a Medicaid fraud felon without a prior violent history could be treated differently than a drug felon with a history of domestic violence. It was not proven in the given facts that Kanter showed a propensity with his traits or any pattern of violence to justify being deprived of his Second Amendment rights.

Overall, in the Kanter matter, this dissent invoked memories of Justice Barrett’s mentor Justice Scalia in using a historical approach to advocate for a position. From a pragmatic standpoint, this dissent is very persuasive and looks to further assess the analysis in a fact-specific way by considering the comprehensive background of litigant Kanter. Justice Barrett presents a reasonable method to filter claims that could deprive convicted felons their enumerated Second Amendment rights. The intent is to restrict firearms access to dangerous felons, but we cannot fall into the trap of painting a broad brush in having government overstep its power. It is not necessary given the set of facts presented here of a non-violent felon that did not carry a violent history.

Conclusion

These works are a sample of insight into Justice Barrett’s jurisprudence. We can say, however, with relatively strong certainly that based on our analysis, Justice Barrett will be a judge that considers revisiting precedent from time to time if the right opportunity was presented before the Court. As part of her balancing test, however, she would consider reliance interests and take a fair, methodical and reasonable approach. Also much like her mentor Justice Scalia, she will use history and rely on original public meaning interpretation as tools to formulate her position.

As the Supreme Court presently stands- Justice Sotomayor, Justice Breyer and Justice Kagan are in the left of center camp with Sotomayor the farthest left. Chief Justice Roberts presently comprises the ideological center with having been a deciding factor in recent years in decisions that have benefited both the left and the right. Justice Gorsuch and Justice Kavanaugh, although currently early in their tenures are to the right of Roberts in that order based on a small sample size. Justice Gorsuch has sided with the left on various occasions such as issues dealing with Native America rights and sexual orientation as a protected class. Justice Alito is positioned to the right of Kavanaugh with the most consistent record from his longer tenure and Justice Thomas to the right of Alito. Justice Thomas has taken a far bolder approach to major issues even in dissents and concurrences. He has embraced Constitutionalism in its purest form.

An early prediction for Justice Barrett is that she will fall either in between Kavanaugh and Alito or perhaps even Alito and Thomas. She is an excellent asset to the Supreme Court and we look forward to watching her impact on the further development of Constitutional law in the years to come.



[1] Amy C. Barrett, Precedent and Jurisprudential Disagreement, 91 Tex. L. Rev. 1711 (2012-2013).

[2] Amy C. Barrett & John C. Nagle, Congressional Originalism, 19 U. Pa. J. Const. L. 1 (2016).

[3] Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019).

RBG on Law and Religion Part 1

Supreme Court Justice Ruth Bader Ginsburg, the second woman to be appointed to the Supreme Court following Sandra Day O’Connor passed away after a heroic bout with cancer. She was nominated to the Supreme Court by former president, Bill Clinton and replaced the late jurist Byron White who we have discussed in prior pieces. One must respect her early work as a litigator with regards to women’s issues and seeking legal reforms along with her tenacity to battle through her many health issues in recent years. She was also a close friend of the late Justice Antonin Scalia and proved that differences in ideology do not always need to come in the way of friendship.

Justice Ruth Bader Ginsburg

Respectfully, however, the purpose of this blog is to educate on several issues including on law and religion. As a Supreme Court justice her work in this area has left much to be desired. In this piece, we will reflect on a couple of her opinions in controversial law and religion cases and gauge the probability of these opinions having a lasting impact on the law. We will focus in Part 1 here on her majority opinion in Christian Legal Society Chapter of the Univ. of Calif. v. Martinez (2010) and dissent in American Legion v. American Humanist Assoc. (2019).

I.        Christian Legal Society Chapter of the Univ. of Calif. v. Martinez

In Christian Legal Society Chapter of the Univ. of Calif. v. Martinez, the Court assessed whether a campus student organization, Christian Legal Society (CLS) was in violation of an “All Comers” policy instituted by the school to welcome any student into their respective student group. The organization in question had a policy that did not allow membership to those that were involved in relationships that were in violation of Christian teaching. If the organization did not comply with the “All Comers” policy, it would not receive funding.

The Supreme Court held in a 5-4 vote that the school should not be compelled to alter its “All Comers” policy to allow for exclusion of students based on conduct. In the majority opinion authored by Justice Ginsburg, the Court held that the Christian student organization in question did not meet the standards to be classified as a Registered Student Organization (RSO) that required the organization to be adherent to state law policy barring discrimination on several bases including religion and sexual orientation.

The Court found that the limited public forum standard applied was both reasonable and viewpoint neutral, and therefore did not violate CLS’s right to free speech. The right to expressive association was also not violated because the Christian student organization was not forced to accept members, it simply restricted access to facilities and funds. It also claims no religious beliefs were violated but that the policy was neutral and applied to all student groups.

The Court also found persuasive the argument that the financial assistance to groups came from mandatory student fees and the school did not want to compel funds from students that would be rejected as a member from the general student body. The Court also found that the school would necessarily undergo a daunting task of having to ascertain the group’s motivations to exclude members with a belief vs. status investigation. Finally, the precedential state law discrimination principles would necessarily apply and were not outside of the Constitutional limits.

One could argue that this decision may be challenged in the future with a different composition of the Supreme Court. One of the major aspects of Justice Ginsburg’s opinion that could be subject to challenge is the belief vs. status assessment that is the core of the decision. In its most basic premises, the student group did not restrict membership on orientation, but rather on lifestyle. While there may have been a restriction for those actively in a homosexual relationship, that same restriction could have seemingly applied to those in a heterosexual relationship actively engaging in consummation outside of marriage. In both of these cases, the bedrock is belief and active lifestyle, not status. It does not matter the homosexual or heterosexual inclination; it is rather the lifestyle decisions and beliefs of the prospective member. A faith-based student group likely sought to preserve the religious mission by admitting members that follow their respective belief system.

There could be a plausible argument to be made that the school actions targeted an organization with a faith mission. It is different if there was evidence stating status was the defining issue for restriction, but that does not appear in the facts. Furthermore, the Court weakly presented that it would be a “daunting” task to ascertain the student group’s decisions to assess if there was a status violation. The “daunting” task should have been of no concern to the Court, it is not the Court’s responsibility to engage in commentary opining on the school’s status of individual protocol implementation to conform with the law. Its position is to merely interpret the law as written and apply it to the given facts.

A Supreme Court decision finding the school in error would also be harmonious with the pre-existing state law that prohibited discrimination on religion and sexual orientation. The Court would in fact be clarifying that there was religious discrimination by the school in violation of the state law, but no violation on the part of the organization with regards to sexual orientation because it was never established as a restricted group based upon these facts. If the Court was to make a sound pronouncement, it could find the school in violation of state law.

There is a counter-argument, however, that Justice Gorsuch’s decision in Bostock this past term would in fact strengthen the majority opinion here when assessing belief vs. status. There he wrote in the majority opinion that sexual orientation could be violated under the gender class in Title VII discrimination matters. He found that necessarily there would be a gender violation because it is the nature of the respective gender itself that created discriminatory sexual orientation conduct based on gender expectations. The argument as applied here would likely present that expectations of sexual orientation would bear on decisions of admittance into the student group with the understanding that certain lifestyles must be adhered to depending on the nature of a respective sexual orientation.

While a formidable challenge, it can still be contested because the interest of religious belief must be weighed accordingly. The text of the state law clearly states there must be no discrimination based on religious belief.  Any type of a sexual orientation expectation relating to consummate relationships here would necessarily fall under religious belief of the mission of the organization, not on a matter of orientation alone. It presents a general principle, not animus towards a respective individual. There would be compliance with the All-Comers policy so to speak because the group in of itself is open to everyone, however, it is the decision of the individual as to whether they believe their lifestyle complies with the mission. If their conscience lifestyle decisions are not in compliance with the mission, then they could not proceed to becoming a member, but this does not change the fact that the group was initially open to them. Furthermore, it provided under the group’s rules that there was an allowance for an evolution of lifestyle decision-making that eventually reaches compliance with the mission of the group.

Overall, if this case was revisited again, it is not unrealistic that the Supreme Court would carefully reconsider the nature of the religious interest under these or similar facts and be protective of the group’s religious mission.

II.        American Legion v. American Humanist Assoc.

In American Legion v. American Humanist Assoc., the Supreme Court ruled that a WWI memorial cross erected on now public land near a highway does not violate the Establishment Clause. It was originally erected as a tribute to WWI veterans when it was still private land. The land was eventually sold to the government and a highway was built around it. The cross is an imposing structure but it clearly stands as a war memorial monument. The majority opinion authored by Justice Alito articulated that the cross, although originating as a Christian symbol, later assumed a secular meaning. Its historical importance diluted its Christian symbolism. Government action to remove the memorial could also be considered on its surface an appearance showing hostility towards religion.

In Justice Ginsburg’s dissent, she emphasized that the cross is staple symbol of Christianity and its nature as a war memorial does not change this symbolism. She argued that the cross on now public land presents the appearance of prioritizing Christianity over other faiths and non-religion. Justice Ginsburg would have remedied the situation by relocating the monument to private land or by transferring ownership of the land and monument to a private party.

Here, Justice Ginsburg failed to focus on the original intent of the Establishment Clause. The Establishment Clause was enacted to prohibit government from compelling a religious belief on its population and in turn have a church that is state run, modeled like the Church of England. A factor for early settlers in the colonies in their decision to depart England was the religious intolerance shown towards their beliefs. Protestant sects that broke off from the Church of England were looked upon disfavorably as were Catholics and other faiths. They experienced various forms of persecution. The King of England was the defacto “head” of the church and government was largely an influence in its faith practice. The framers wanted to avoid a similar situation, for example a figure like George Washington being the head of the “American Church” with various sects experiencing persecution if not part of this tradition. Another example that was to be avoided was forcing people of faith to convert to a respective sect or punishments for not being a person of faith.

Now, in the present day we again reflect on the cross. The cross is a symbol of Christianity, but much like the Christmas Creche debates and Menorah debates, a representation of such a symbol does not amount to compulsion. One could argue the Supreme Court here did not go far enough in focusing on this point, but instead rather the “evolving” conceptual understanding of the memorial. Nowhere in the facts does it state that there was punishment in the local community via monetary or another form for not being a Christian. The cross itself does not have this power, nor does it show that the government favors a religious preference and actively addresses it over other faiths. If a Menorah was to be put up next to it for Jewish veterans, that would also not amount to a violation. It is representing the faith reflection of a local community, not compelling others to join the community or be used as a tool for animus towards other beliefs. The outcome of this matter would be different if a Menorah bid was made and was rejected for unsubstantiated reasons that hinted at animus.

III.       Conclusion

Overall, the direction of the Court will likely transition to greater protection for religious freedom and conscience rights if Judge Amy Barrett is to be confirmed to the Supreme Court in the spot left vacant due to the death of Justice Ginsburg. She was a clerk for Justice Scalia and has written on law and religion issues. Her jurisprudence and scholarly assessment will be the topic of a future post. It is not unrealistic to suggest that the Court may reassess the issues presented in Christian Legal Society with a more sympathetic view towards religious interests. In American Humanist, however, the Court has continued its movement towards broader acceptance of religious symbolism compatible with the Establishment Clause. With the addition of Judge Barrett, the Court may take a bolder approach to these matters and could consider more seminal issues such as reassessing the role of prayer in other aspects of life such as education and extracurricular activities sponsored by schools. It will be an interesting evolution to consider.

Cancel Howard Zinn

The nation has reached contentious times with the erosion of the very fabric of American civilization in a slow, but methodical manner. How did we get to this point? This is the question that is not commonly asked. When statues are torn down and team mascots changed because of a destructive sense of American guilt complex, how do we respond?  Its time we start to focus on the origins in order to avoid these destructive effects.

This problem has impacted every American whether they are a republican, democrat, conservative, liberal, male, female, religious believer, atheist or any race. The American culture is shared by all of these diverse groups, the time has come to make strides to preserve the culture. Yes, every nation has a dark past and imperfections at some point in their history, but also every nation has time periods of prosperity and cultivation, innovation and optimism. Today, in the American education system from the lowest to the highest levels there tends to be an engrained sense of American guilt complex most notably found in social studies, history, literature and civics courses. These courses help mold the moral compass and view of the world that is shared by young people who will one day grow to be leaders in society whether that be on the cutting edge of business or science or caring for a family. This guilt complex did not come about overnight, but over a period of several decades and years. In order to begin a healthy reform process, we must cut to the core of the problem. We need to focus on the seeds rather than the weeds that have sprouted. A bad seed that contributed to the origins of this problem were planted by an individual named Howard Zinn and we will examine how his philosophy has grown to become almost an uncontrollable weed on our education system, while simultaneously misguiding generations of Americans. Perhaps we should give cancel the Zinn legacy before it fully engulfs our nation.

Howard Zinn published a well-known historical book, called “A People’s History of the United States”.[1] It was ground-breaking in the sense that it articulated in a lone volume the American guilt complex that has grown to become a bedrock of our education system today. It concentrates on the concept of victimization that was brought on by colonial and corporate interests that have allegedly suppressed the people. It promotes a misguided and impractical sense of egalitarianism that if in fact allowed to occur would never have allowed for true progress defined by the authentically American trait of innovation. We break down 3 of the many points in his books that raise significant issues- Christopher Columbus, The Founding and World War II and address why we cannot accept the Zinn narrative of these critical points in history.

Christopher Columbus

Zinn emphasizes some major points in his distorted retelling of history. First, he presents Christopher Columbus as an imperialist bigot that sought the destruction of native people when arriving in the Americas. In his book on page 9 he makes the outrageous claim that “the treatment of heroes (Columbus) and their victims (the Arwaks) [Indian tribe] – the quiet acceptance of conquest and murder in the name of progress- is only one aspect of a certain approach to history, in which the past is told from the point of view of governments, conquerors, diplomats, leaders.”

 While we can acknowledge that conflict existed between explorer expeditions and tribal natives in the new world at times, to classify the overall intent of the exhibitions as a murderous enterprise is in error. Columbus pursued his mission and lined up his royal resources and funding based on stories of new land cultivation and treasure that was said to be ready for development in the new world. The mission for him to travel across the world was not embarked upon to commit murders and atrocities. While surely some men in his exhibition may have been dishonorable with their actions or in fact took arms to defend themselves – to generalize conflicts that would later arise and define the exhibition on those terms truly distorts history. This issue has a direct correlation to misinformed education that has now cultivated in tearing down statues of Christopher Columbus nationwide and making him an alleged scapegoat for a wholly unrelated tragic occurrence in Minnesota. To get to this point, to connect Columbus naturally with racism and genocide has been years in the making and has finally begun to bear fruit. In his revisionist history, Zinn conveniently brushes aside the many collaborative efforts with native peoples and explorers that led to a blossoming and prosperous relationship with communities in learning the land and appreciating its vast resources. It was also not uncommon for several of the explorers to mate and mix with native peoples, thus leading to a diverse family racial structure that remains visible today.

The Founding

Second, Zinn challenges the legacy of the Founding Fathers. On page 89 he takes a radical view in what he sees as the true purpose and end game of the revolution:

“The inferior position of blacks, the exclusion of Indians from the new society, the establishment of supremacy for the rich and powerful in the new nation- all this was settled in the colonies by the time of the Revolution. With the English out of the way, it could now   be put on paper, solidified, regularized, made legitimate, by the Constitution of the United States, drafted at a Convention of Revolutionary leaders in Philadelphia.”

This is minimizing the Revolution, founding of the nation and enactment of the Constitution as simply a rubber stamp to oppress those in society. Zinn conveniently fails to mention that the Constitution itself was a ground breaking document in establishing liberties and a cohesive government structure that would later serve as a beacon to the world.

For example, several founding fathers including Alexander Hamilton were abolitionists and fiercely detested the practice of slavery. Hamilton was among the founding fathers that fought tirelessly for the Constitution’s ratification in bridging many interests that needed to be balanced at that contentious time. Zinn declines to mention that the phrase, “slavery”, itself was not specifically provided in the Constitution. Although, the text references the 3/5 clause and connotations such as those held to service in labor, the word slavery is never used. If in fact the Constitution was to be a rubber stamp on encouraging this practice to continue for generations, why does it not even appear by name and feature as a heavy point of emphasis in the document? Furthermore, why is there an amendment procedure clearly outlined in the Constitution that allows for the document to undergo reform with the times as the generations progress? A rubber-stamped document with an emphasized mission to preserve prior controversial practices would not allow such flexibility and an amendment process that allows for change. This is the same process that would eventually allow for the United States to ban slavery and serve as a model for the world. The healthy seeds were planted for this monumental moment at the time of the founding. Howard Zinn carelessly disregards these facts to provide an alternate and destructive understanding of history.

Zinn is not finished with the founding, rather, he continues in his work on many occasions to not tell the entire story and establish a proper context. He cites to the creation of the Bank of the United States in the early days of the nation. This project was spearheaded by Alexander Hamilton. Zinn categorized this project in the following manner on page 101:

“Hamilton, believing that government must ally itself with the richest elements of society   to make itself strong, proposed to Congress a series of laws, which it enacted, expressing   this philosophy. A Bank of the United States was set up as a partnership between the government and certain banking interests. A tariff was passed to help the manufacturers. It was agreed to pay bondholders- most of the war bonds were concentrated in a small group of wealthy people- the full value of their bonds. Tax laws were passed to raise money for this bond redemption.”

While Zinn is correct here in pointing out some of the features and structure of the Bank, he does not provide the context as to why its establishment was so important and why Hamilton looked to some of the wealthier elements in society to help in its enactment. The way he has prepared this point- it seems worded to contemplate in a negative light, the concept of looking to those with economic resources to help provide a foundation for the project. Its more than just allying with rich interests and repaying a small group of wealthy people their bonds in full value, it’s creating an economic outline for the nation’s future growth.

Hamilton had recognized that the nation, having just come off war was in desperate need of financial organization. War debts were still owed and rival nations across the globe still posed as threats. The nation needed to be stabilized in its early days with a solid banking system to allow for channels of economic productivity and the capability to raise funds through taxing to maintain a military to serve national security interests and pay down the debts. The highest economic levels of society were prepared to assist in this mission and the Bank of the United States was formed.

World War II

Third, on WWII, Zinn makes several controversial points. One in particular that shows a shameful distortion of a historical narrative is his discussion on the atomic bombs being dropped on Hiroshima and Nagasaki to end WWII. On pages 422-423, he takes issue and challenges the Allied intelligence that estimated hundreds of thousands of troops would have died had an invasion been done on the Japanese soil. He further states that the Japanese would have eventually surrendered and were engaged in discussions of that nature, but were adamant against unconditional surrender which included the leadership of Japan as the Allies demanded. He even queries that it may have been the concept of money and effort that would have been squandered if the Allies did not in fact proceed with the bomb that led to the final decision.

These allegations portray a dangerous distortion of history and are not established in a fact appropriate context. As President Truman agonized over the decision to drop the atomic bomb, he considered the many Allied lives that were lost by this point in the war after a long 4 years of America’s involvement. He had the resources to avoid further serious bloodshed to the Allied troops and took action. A key point that is never mentioned by Zinn, however, is that 11 days prior to the first atomic bomb being dropped on August 6, 1945 over Hiroshima, he demanded formally with the Potsdam Declaration the Japanese’s unconditional surrender.[2] Leaflets were also dropped for civilians to heed the warning and evacuate the cities. The Japanese failed to respond and the first bomb was dropped.  Truman issued another warning via radio address that was not heeded before the second bomb was dropped a few days later on August 9, 1945.[3] The Japanese would then surrender shortly after the second atomic bomb was dropped.[4]

Permitting the leadership structure to remain intact in Japan and agreeing to not force an unconditional surrender would not have been a good decision. The Japan leadership during the war was responsible for many deaths in the Pacific Theatre during the war and that does not include the attack on Pearl Harbor on December 7, 1941 that would later bring America into the conflict. In order to move past this horrific era in history, there needed to be left no doubt that the evil stemming from the Axis powers would no longer be tolerated in any form post-war and not be permitted to return. It is also lost that there were opportunities for the Japanese to peacefully end the conflict, but the stubbornness and failure of the leadership to appreciate the stern warnings ultimately led to destruction. For several years after the war, the American with the Allied remained committed to rebuilding and restoring Japan following the destruction stemming from World War II. America did not abandon them despite the destructive conclusion of WWII.[5]

Zinn makes no mention of any of these points that establish a context for the actions at the end of World War II. Furthermore, his suggestion that perhaps monetary and prideful interests were major factors in Truman’s decision-making disrespect the honor of President Truman who was faced with a very difficult decision. If such interests were as compelling as Zinn would make us believe, there would not be a necessity to make the effort to warn Japan and their people. At any point Japan, could have chosen to heed the warning and Truman would not have had to act so decisively, but they exerted their free will and chose not to.

Conclusion

Overall, a common theme running through Zinn’s work is the concept of the people rising after being suppressed for generations. It is influenced from Marxist philosophy in which class warfare is desired to forcefully disrupt and overthrow the system. It lacks a sense of individualist and narrow focus, wholly abandoning reason for a generalized sense of emotion.

For example, even in addressing America’s dark time of slavery, Zinn fails to appreciate that reform did occur. Instead of praising the American way for being at the forefront of abandoning the practice and promoting the abolition movement he dwells on the slavery practice as defining us as an imperfect people incapable of removing its stain. He would rather us base our policy and philosophy today on past transgressions rather than appreciate the greater points of innovation and true progress of the American way that pushed for healthy societal reform. The interpretation of history articulated by Zinn, not only distorts the true historical narrative of America, but also creates a guilt complex that has culminated in societal unrest that we witness today. Education is key to the reform of society, but it also has the capacity to push society into the abyss with misinformation. As school begins this fall, let’s cancel Zinn and his distorted historical narrative.


[1] Zinn, Howard.  A People’s History of the United States.  New York, HarperCollins, 1980.

[2] https://www.trumanlibrary.gov/education/presidential-inquiries/decision-drop-atomic-bomb

[3] https://millercenter.org/president/harry-s-truman/key-events

[4] https://www.crf-usa.org/bill-of-rights-in-action/bria-15-3-b-choices-truman-hirohito-and-the-atomic-bomb

[5] https://www.theatlantic.com/photo/2014/03/japan-in-the-1950s/100697

Justice Alito’s Scalian Fury

This past term at the Supreme Court offered some surprises with several controversial cases decided. We have touched on Chief Justice John Roberts’ role in these decisions, but we cannot neglect the resistance offered by U.S. Supreme Court Justice Samuel Alito this term. His dissents were fiery and often embraced a Scalia approach with combative, but well-grounded legal reasoning unafraid to call out the majority’s perceived drift from the Constitution. In general, Justice Alito has been a relatively stalwart Constitutionalist during his tenure unlike that of the Chief, a fellow appointee of former President George W. Bush. We will break down Alito’s dissenting opinion in perhaps the most controversial case, Bostock v. Clayton on the redefinition of Title VII to include sexual orientation as a protected class.

This has been rightly billed as among the most controversial if not the most controversial case during this Supreme Court term. Justice Neil Gorsuch, in writing for the majority composed of Chief Justice Roberts, Justice Ginsburg, Justice Breyer, Justice Sotomayor and Justice Kagan redefined the scope of Title VII employment discrimination to include sexual orientation despite not being explicitly defined in the statute. Justice Gorsuch attempted to display in his reasoning that on the basis of “sex” that is provided in the statute naturally leads to a definition of sexual orientation based on the discriminatory conduct stemming from the sex choice of claimant’s relational choosing. This majority opinion is vulnerable to substantial criticism as even those voting in the majority adopted different reasoning to support the outcome in addition to the expected scathing challenges of the dissenters.

Facts and Arguments

In Bostock, this matter combined two cases – one a county employee in Georgia was fired for participating in in a gay softball league and the second an employee was fired from working in a funeral home for being transgender. Gorsuch emphasized that sex is a necessary factor in the employer’s decision making and pointed out that the employer maintains expectations of the male and female and considered the “traits” of their sex’s expected behavior before making the discharge decision. He finds that “homosexuality and transgender status are inextricably bound up with sex”.

Justice Alito then provided a scathing dissent challenging the premises of Justice Gorsuch’s interpretation. He opens with explaining that the Supreme Court has usurped authority of other branches of government, namely here the legislature to rewrite a statute. He classifies this action as “preposterous” and invokes memories of energetic Scalia dissents. He even cited to Scalia’s legacy and work in his book “A Matter of Interpretation” by plainly stating that this is an opinion Scalia would have “excoriated––the theory that courts should ‘update’ old statutes so that they better reflect the current values of society.” This also reflects some of Judge Robert Bork’s view that we have spoken about in prior pieces to deter judges from relying on new societal drifts to promote activist opinions.

In taking aim at Justice Gorsuch’s argument that the orientation is intrinsic to sex he relies on the following example: “an employer can have a policy that says: ‘We do not hire gays, lesbians, or transgender individuals.’” He adds that “an employer can implement this policy without paying any attention to or even knowing the biological sex of gay, lesbian, and transgender applicants.” He concludes that “an employer cannot intentionally discriminate on the basis of a characteristic of which the employer has no knowledge.” Justice Alito is arguing that this proves that orientation is not intrinsic to sex, therefore it is impossible for an employer to base a discharge decision on sex if orientation is the given trait provided in the policy. They are clearly two separate classes.

Another strong argument made by Justice Alito is in the context of linguistics. He articulates that the phrase “sex” is used in several modifiers such as sexual intercourse. Is this now protected under Title VII? Deriving from Justice Alito’s analysis here, let us consider the following example. Could a plausible action be brought under Title VII by an employee that was discharged for sleeping with the CEO’s wife? Per Justice Gorsuch’s assessment there would be protection there as it is connected with the concept of sex as one’s sex is being acted out necessarily with regard to orientation. This “sexual” intercourse would seemingly fit under the umbrella of “sex” as a simple noun. The door that has now been opened could seemingly lead to more outrageous ends based on a reading that adds substance that was not intended when the statute was passed.

Effects                

Justice Alito raises the concern that this standard can now lead to a slippery slope and prove detrimental in other areas of society. One area he pays special attention to is the concept of professional sports. A path has perhaps been made for a case in which an individual with clearly identifiable masculine traits developed from birth considers a transition and new classification to a woman, thereby making himself eligible to participate in women’s professional sports such as basketball. This would then leave the various sports owners in a difficult position and perhaps lead to a Title VII action under the sex classification. Calling into question the fairness and legitimacy of the league to the naturally women participants would create an array of problems and in fact be detrimental to these women. The statue had also intended to protect women and this directly compromises this purpose. This stems from Gorsuch’s broad interpretation of what constitutes sex to now include transgender and transitioning individuals. Adherence is no longer firmly with regard to birth traits, but rather has opened a conflict between the physical characteristics and the “view” one identifies with from a mental standpoint.  Unnecessary complexities have now been added to the equation and will now pose significant and unclear hurdles. What is the balancing test for the physical vs. the mental sex expectations? How long has one been fully transitioned? Is there a time frame for that in order to be accepted as full female or full male? Does this raise the specter of fraud- can one transition mid-way through a fledgling NBA career and switch to WNBA right away if going through the appropriate administrative channels? The Bostock decision has left open a wide range of possibilities and future complications for adjudication of Title VII.

Justice Alito was also concerned about the religious impact stemming from the issue.  While he acknowledges that faith institutions have pre-existing defenses such as the ministerial exception that protect them in some situations if teachers are communicating a lifestyle contrary to the faith’s message, claims will still be brought. Claims based on failure to hire or unjust discharge based on such issues as sex reassignment and types of romantic relationships remain possibilities, especially if the concept of minister has an unclear application to certain employees. The lower courts will have to overcome these hurdles, but he did note that the Supreme Court will soon be addressing these issues.

State Law

Finally, drifting away from Justice Alito’s opinion, there is another plausible argument that can be made that strongly challenges the underlying principles of the Bostock opinion. Nineteen states[1] have passed employment discrimination statutes that maintain a separate class for sexual orientation under the law. This is not a small minority of states and supports the view that at the state level there was not widespread intent to incorporate orientation claims under the umbrella of sex with regards to employment discrimination. It proves this is yet another example where judicial minimalism should have been given paramount consideration considering the clear text of Title VII and the established practice of several states understanding orientation as a separate and distinct class.

Conclusion

Overall, the Bostock opinion was surprising to some and has raised more questions than answers with the future adjudication of Title VII claims. It will have a monumental impact, but the questions that it creates will continue to be adjudicated in several forms. It will unnecessarily complicate this area of litigation and the ensuing debate returns us back to a seminal issue. When judges drift from the original intent and textual interpretation, they find themselves in dangerous territory and risk assuming roles best left to other branches of government. One could argue that this is what in fact occurred here. A major takeaway from this term and most specifically this decision, however, is the boldness of Justice Alito to embrace a bit of the Scalian fury to challenge what he perceives as judicial activism. The Scalia legacy is alive and well and this term Justice Alito wholly embraced it.


[1] https://www.ncsl.org/research/labor-and-employment/sexual-orientation-in-employment-discrimination-laws.aspx

A Few Words on Hamilton

Today, July 12, marks the death anniversary of one of our greatest Founding Fathers- Alexander Hamilton also known as Publius stemming from the duel with hated rival Aaron Burr. Alexander Hamilton played an integral role in our nation’s founding. He is an American icon and his legacy should be cherished for all the great things he did for the founding of our nation.

He was born in the Caribbean island of Nevia. He had a difficult upbringing as his mother had him with his father while technically being married to another man. His mother’s marriage was one that was steeped in confrontation as her husband had treated her very poorly, spending her fortune and imprisoning her for alleged but unfounded revelations of adultery. From the onset, her mother was the driving factor behind the marriage as the husband had presented himself in a deceiving manner. When she had the chance to escape, she did and met Alexander Hamilton’s father, James Hamilton. In addition to Alexander, she also had another son before him, named James Jr. At a young age, however, Hamilton’s father departed and his mother was left to care for him and his brother. She worked very hard to raise them with working a small business, but sadly succumbed to an illness two years after his father’s departure. The young Alexander Hamilton then took up work in a trading company where he was able to showcase his intellect and learn invaluable business skills that he would later use when being at the forefront of establishing our nation’s economic system. He left a strong impression on his employers and had a promising future ahead. In the Caribbean, the slave trade was active and the young Hamilton was a witness to the several atrocities it entailed with dehumanizing Africans that were imported. This left such a strong impression on him, he would later find himself as one of the Founding Fathers more open about his abolitionist leanings.

When a hurricane hit the island, he penned a letter to his estranged father that got the attention of the locals and was showcased in the local publication. He wrote so well, that he continued to gain support from several people on the island for his description of the hurricane. Many saw in him a bright future and helped him organize funds to study in America. It was believed that after he received his education, he would return and bring back his knowledge. During his time of study at King’s College in New York (what is now Columbia University), he continued writing on issues as the colonies were preparing for revolution. He eventually fought for the colonies when the war began and began to rise up the ranks, to eventually being one of George Washington’s most loyal military leaders.

After the war was over, he continued his studies and eventually was admitted to the New York bar and practiced for a time as an attorney. From his impressive connections he made during the Revolution with Washington among other Founding Fathers, he was tasked with helping to organize plans for the new government to be formed. He was a part of the Constitution ratification process. Among his notable contributions was his work as being one of the “Publius” writers for the Federalist Papers which defended the principles of the Constitution and provided a new vision for this new government.

The mission of our blog is found in Federalist 78 when he eloquently articulated the role of the judiciary. It is a timeless message:

“It may truly be said to have neither FORCE nor WILL, but merely judgment.”

When looking closely at Hamilton’s words here, we can contemplate that the tendency to exert “force” or “will” often occurs when judges move away from the Constitution and create their own biases on what the law should be rather than what the law is. By working within the Constitution and its boundaries judgment rather than will is exercised under an objective standard which is what Hamilton and the framers intended.

This is not the entirety of Hamilton’s contributions; however, he was also named George Washington’s First Secretary of the Treasury. He was responsible for helping create our economic and early banking system. The First Bank of the U.S. was established and created the early foundations for a stable economic and banking system. There were rivalries with other framers, however, as to the direction of the country. For example, Thomas Jefferson wanted more power given to state governments and a very weak federal government. Hamilton wanted a stronger federal government and sought a balance with manufacturing and industry rather than an agricultural concentration that Jefferson envisioned. While allowing the states to maintain their liberties and power was important, at this early stage there also needed to be a centralized federal government to help ensure the stability of the nation. This would allow the nation to collect revenue and maintain a solid national defense force.

On a more local note, Alexander Hamilton is buried at Trinity Church in downtown Manhattan. Tourists flock there often to pay respect to one of our greatest Founding Fathers. He also was instrumental in recognizing the advantage of the Great Falls in Paterson, New Jersey as providing a great advantage in developing industry. Textile mills and the cotton industry would soon begin to develop there. It is a National Historic Park and is a reminder of his great legacy.

Overall, the foresight of Hamilton was unparalleled. He was a brilliant intellectual and Founding Father. During the adversity of his early years, he certainly developed the skills to become one of the great American icons. This included working in the trading company to develop his economic skills and his love of books as a youth that helped make him a great writer and intellectual. He also dealt with tragedy that helped him forge the strength to persevere through the rigors of the Revolution. Hamilton embodied the mission that every American should hold dear today. No matter your origins, if you work hard you can make it here in some way, some form.

We owe Alexander Hamilton a debt of gratitude and encourage more Americans to be educated on his great legacy. He is more than just a figure on the $10 bill, he played a leading role in developing the system to provide us that $10 bill.

Let us not exile Publius, but rather celebrate his legacy and contributions to the nation we hold dear today………

Hail to the Chief?

This Supreme Court term offered many surprises to some with the outcome of various high-profile decisions ranging from issues related to immigration and DACA to gender discrimination and abortion rights to school choice with religious private schools. Chief Justice John Roberts for good or for bad- whichever side you take exerted his influence in a breakout term for him. With the retirement of Justice Kennedy and Kennedy’s replacement by Justice Kavanaugh, the Chief has found himself in a unique position as the “Chief” swing vote on several major cases. In this term, he positioned himself in the more liberal camp for much of these opinions, thus drawing the ire of several conservatives. Justice Kavanaugh, who many thought would be voting in lock-step with the Chief based on their similar background of jurisprudence found himself on the opposite side of the Chief in several of the opinions, often aligning himself with Justice Thomas, Justice Alito and most of the time Justice Gorsuch. It will be interesting to note how this line of jurisprudence continues to develop in the coming years. We will cover Justice Kavanaugh this term in a future piece.

As we have discussed in prior pieces, however, the way Roberts has handled this term is not entirely surprising when it is considered that this is an election year and he seems to want to take the Court out of a controversial spotlight with several culturally charged issues. While it is easy to disagree with his present view, one could foresee the Court being aggressive next year with major cases when the atmosphere will likely be less charged. Roberts has presented himself as a judicial gradualist, not in the same vein as his predecessor and former boss, the late Chief Justice Rehnquist who was more inclined to tackle tough points, despite the societal landscape.

In this piece we will discuss Roberts in Espinoza v. Montana Department of Revenue, with regard to the school choice for religions private schools and June Medical Services v. Russo case with regards to the abortion issue.  

Espinoza v. Montana Department of Revenue

We have discussed this matter in our April piece in anticipation of the Supreme Court’s decision. By way of summary, it concerned a state tax credit law passed in Montana that offered credit to companies and individuals that donate to private school scholarship funds. There are several private schools in Montana that are classified as religious and would have benefited from the program. The Montana Supreme Court ruled the scholarship aid program unconstitutional per the Montana state constitution because there was an opportunity for direct or indirect funding to religious schools. This archaic provision in the Montana state constitution originated from the Blaine Amendments passed in the late 1800s in various states that sought to restrict the influence of Catholic educational opportunities that were beginning to develop.

The U.S. Supreme Court, in a 5-4 vote authored by Chief Justice Roberts found that the Montana Constitution’s no-aid provision to religious private schools was unconstitutional and in violation of the Free Exercise Clause.

 He made reference to the recent Supreme Court case, Trinity Lutheran v. Comer that held “disqualifying otherwise eligible recipients from a public benefit “solely because of their religious character” imposes “a penalty on the free exercise of religion that triggers the most exacting scrutiny. In that matter the Supreme Court ruled it was valid for the state to provide funds for tire pieces at a religious school’s playground, a Missouri law there had previously prevented funds from being provided to religious educational institutions for such a function. The Supreme Court there found the actions discriminatory. He compared that case to the Montana case by articulating that the Church was treated in a discriminatory manner just by its nature and status and was thus subject to strict scrutiny. The government failed to meet its burden and the Montana decision was invalidated.

Roberts later proceeded to discuss the history and tradition of various examples of states and the federal government providing grants to religious based private schools. On the opposing end, he also was careful to highlight that the Blaine Amendments had served an anti-Catholic purpose and were rooted in bigotry and should not be considered as supportive sources for Free Exercise claims.

When assessing Roberts’ opinion here, he showcases his gradualist approach, in the context of law and religion jurisprudence. He built off the model set forth in Trinity Lutheran a few years prior to reaffirm that religious private schools are also entitled to protection and support under the Constitution. While there are other areas in which the Roberts Court may have disappointed, religious freedom remains as one of its strengths. Moving forward, expect more religious claims to be brought that look to reaffirm our early Constitutional understandings of the relationship between religion and government.

June Medical Services v. Russo

The issue of abortion has unleashed a flurry of controversy since the Roe v. Wade decision that legalized abortion in 1973. As discussed in prior pieces, this decision removed a historically state regulated issue and placed it in the hands of the judiciary and since that point, the Supreme Court has found it very difficult to shed the political spotlight. With passion on both sides of the issue, it has become defining in Supreme Court confirmation hearings since the days of Robert Bork to Brett Kavanaugh. When a case arises such as the one here that even gently touches on the issue, it creates a national following. Chief Justice Roberts’ decision here baffled many with him taking the seemingly opposing side a few years prior on a similar case, but as you will see in this decision Roberts’ reliance on stare decisis (offering strong leeway to prior decisions) was a deciding factor. Some have commented that on its merits, Roberts does not accept invalidating the law at issue, but in fact he has taken a position to shield the Court from further societal charged pressure in an election year.

The central issue in June Medical Services is the admitting privileges of doctors at hospitals when there are emergency abortion complications. The Louisiana law that was challenged had required in relevant part that: any doctor who performs abortions to hold “active admitting privileges at a hospital . . . located not further than thirty miles from the location at which the abortion is performed or induced,” and defines “active admitting privileges” as being “a member in good standing” of the hospital’s “medical staff . . . with the ability to admit a patient and to provide diagnostic and surgical services to such patient.”

The clinics at issue argued that the law was unconstitutional because among other things that it imposed an undue burden on the rights of the patient to obtain an abortion. The medical provider was thereby attempting to assert Constitutional rights in the stead of the individual. In a 5-4 decision, the Supreme Court ruled to invalidate the Louisiana law. Roberts joined the 4 liberal judges, but his reasoning diverged from their opinions.

In Judge Breyer’s majority opinion, he relied on Whole Woman’s Health v. Hellerstadt and Planned Parenthood v. Casey in assessing the undue burden that would be placed on women seeking an abortion based on this law. He found that the providers could assert rights on behalf of the women and was not convinced that admitting privileges bear any relevance to better outcomes for the women that would justify the law. The law hampered the ability of the abortion doctors to provide their services.

Most specifically, in Whole Woman’s Health, which the Court addressed in 2016 with Justice Kennedy still on the Court, the Court there found in relevant part that: the admitting-privileges requirement in a Texas law placed a substantial obstacle in the path of women seeking a previability abortion, constituted an undue burden on abortion access, and thus violate the Constitution. This was also a 5-4 decision with Justice Breyer again writing the majority decision, but the Chief Justice dissenting.

Chief Justice Roberts concedes in his concurring opinion in June Medical Services that he stands by his dissent in Whole Woman’s Health and believes the case was wrongly decided, but affirms the outcome of that decision on stare decisis grounds and adherence to precedent. He states that: “the legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike. The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore, Louisiana’s law cannot stand under our precedents.”

He also spends considerable time in his concurring opinion reflecting on the Casey decision and the concept of a “substantial obstacle” in obtaining an abortion. He also acknowledges that the undue burden standard that was embraced in Casey and cited in Whole Woman’s Health should be respected. In an even further revealing statement he articulated he would further adhere to the Casey holding that required finding a substantial obstacle before striking down an abortion regulation. Clearly, the Chief has shown his sympathy with the legal outcomes and effect of the prevailing major cases in abortion jurisprudence despite whatever personal reservations he may have. This does not bode well for those who consider some of the major opinions vulnerable.

There is much to criticize about this opinion. Most importantly, however, the stare decisis reliance as the central form of support for reaching the opposite outcome than he had a few years prior is troubling. Justice Thomas, in his dissent sufficiently critiques this reasoning. After providing a very thorough challenge to the third-party rights issue in the matter and critical commentary on the substance of abortion litigation to date, he proceeds into the stare decisis critique. He cites to one of his earlier decisions and reemphasizes that when our prior decisions clearly conflict with the text of the Constitution, we are required to “privilege [the] text over our own precedents.” From his view, Roe does not have a Constitutional foundation, thus reliance on the abortion right itself is faulty. He even went so far as to challenge the right to privacy jurisprudence stemming from Griswold v. Connecticut that eventually was a factor in the Roe opinion. Justice Thomas then cites recent cases in which Chief Justice Roberts, himself, has been a factor in overturning precedent. He further explains that the lack of uniformity on how the Court has interpreted abortion rights jurisprudence with pluralities and divisions in several cases diminishes the merit of any stare decisis analysis. The law is far from settled.

When all the above is considered, from the outsider it seems that the Chief used legally lite support to harmonize how he came to opposite conclusions in June Medical Services and Whole Woman’s Health. To address that stare decisis should be a primary source in interpreting the law “albeit special circumstances”, Roberts finds himself in a quandary. He does not proceed further to elaborate what constitutes such a circumstance and how his decisions to overturn precedent in other recent matters differ from the standard employed here.

In sum, Chief Justice Roberts has proven himself to embrace institutionalism during his tenure on the Supreme Court. While we recognize that society has been charged with controversy in recent years and arguably for an extended period of time with the abortion issue among others, it does not mean that we must abandon our Constitutional principles. The threat of court packing and radicalization from politicians with their targets focused on the Supreme Court is very real. Some have been willing to go to the extent of mainstreaming lies about prospective Court appointees to destroy life reputations. Others have threatened impeachment if a judge does not follow their view of the Constitution. While the position of the Chief Justice is not an easy one with the Court being in the cross-hairs, one cannot help but consider that part of this is the Supreme Court’s own doing- past generations of the Court willing to embrace a legislative role to reflect the supposed social agenda circulating at that point in history. This is not what the framers envisioned when they considered the role of the Supreme Court. What better way to remedy the mistakes of prior generations of the Court than taking a stand for the Constitution? In the short-term there will be an outcry, but the reward is worth it and will in fact be a step in the right direction of de-politicizing the Court.

As Publius described the role of the judiciary in Federalist 78, “It may truly be said to have neither FORCE nor WILL, but merely judgment”.  In good judgment, Chief, embrace the Constitution. This country is depending on you. Leave the force and will to address societal needs to the elected branches of government.

American Heroes in Spotlight: Andrew McClary and Bunker Hill

Andrew McClary was one of the early great leaders in the American Revolution and his patriotic sacrifice should be taught and appreciated today. By way of background, he grew up in an immigrant Irish family in New Hampshire and eventually worked his way up the rungs of the New Hampshire colonial society and became a … Continue reading American Heroes in Spotlight: Andrew McClary and Bunker Hill

Expansive Government in Commerce Clause History

By: Chris Gomez The Commerce Clause was the product of ingenious foresight by our Founding Fathers to create an ability for the federal government to be the arbiter of interstate and foreign trade. As an enumerated power in Article 1, Congress was granted these powers. As our nation has developed, however, the judiciary has upheld … Continue reading Expansive Government in Commerce Clause History

“Anti-Trust” of the Constitution

“Breyer retire!” The monopoly of the progressive movement in the mainstream media has greatly harmed the understanding of Constitutional principles in our society. The “Breyer retire” craze is fueled by an unhealthy alliance of politics and an ignorance towards one of the essential fabrics of our Constitutional system. While Justice Stephen Breyer, a President Bill Clinton … Continue reading “Anti-Trust” of the Constitution

Commerce Clause Reflection in the Age of Covid-19

There has been much discussion by those on both sides of the aisle with regards to the power of the federal government over the states as it relates to reopening the economy in some of the more gravely stricken states such as New York, New Jersey and California. The president has articulated that the executive branch has the power to enforce this process. Most commentary has focused on challenging the president’s claim on this issue and stating he does not have this authority. One can suggest, however that this issue encourages further debate when considering some major cases that the Supreme Court has ruled on with regards to the Commerce Clause. Here, we highlight a couple of these cases that can encourage further discussion and debate on this issue with regards to the relationship between the federal government and the states in the area of commerce. The president has a duty to enforce duly passed acts of Congress that meet Constitutional standards.

          First, a 1942 case, Wickard v. Filburn concerned a farmer in Ohio that had grown more wheat then was permitted under the Agricultural Adjustment Act of 1938 and thus did not need to purchase from the outside market. He suffered a penalty under the Act and had to pay a fine. He argued that his extra wheat was not in violation of the Act as it was local and for his own use and consumption. The Supreme Court unanimously rejected this view and stated that because he therefore did not participate in the outside market this could culminate in a substantial economic effect on interstate commerce if other wheat farmers had followed suit. This issue therefore fell within the scope of the Commerce Clause and the government had the right to regulate it. Congress had maintained its goal to stabilize consumption prices in the market through the Act, thus it was a valid exercise of authority.

            This decision is often criticized because of the infringement and seemingly hostile actions taken by the government to penalize simply because of the conscious choice to not participate extra in the outside market based on the local circumstances. It also is commonly held as a stretch of the Commerce Clause when the issue comes down to a more indirect relationship and projected outcome of substantial economic effects on commerce. Some may argue that it is not the place of judges to make this determination, but rather left to local governments and economists to consider the substantial effects economic assessment.

            As it relates to the present issues we face as a nation with regards to federalism questions in the midst of a virus outbreak, this creates complications. In the modern landscape, one could argue that there has been greater interdependence on fellow states for products. Take for example, Florida’s orange juice. If a state order was issued that the factories and groves could no longer be in production of the product because of supposed safety concerns it would be detrimental to the flow of commerce between states. Many states and grocery store chains throughout the nation rely on this orange juice to cater to their populace. The next question then posed would require a balancing of factors including just how high was the safety risk posed in the production mechanisms of the product compared to the detrimental impact on the economy and interstate commerce. Orange juice may not be deemed as essential as other products such as vegetables, milk, eggs, spring water and the like but it still creates an interesting quandary. If Congress considers the effects and passes a law that defines national economic standards and safety levels that need to be met in this test like the controls in the 1938 Act, it would be validly exerting its authority on the issue under Wickard.

            In the next phase, the president, in the executive branch would be tasked with enforcing the regulations passed by Congress. One could then argue that his enforcement of a duly passed law against the conditions posed with the state decision on Florida’s orange juice production would seemingly displace the authority of the governor on the issue. If a suit was brought against the federal government with the actions of the president and Congress, the Supreme Court could consider the Wickard standard and find there was a detrimental impact on interstate commerce because of the state moratorium on producing the orange juice during the outbreak. Congress had a valid right to exert its authority under the Commerce Clause with executive enforcement. It should be noted, however, that this would unlikely come to pass in the present situation because of the divided Congress and a seemingly collaborative, albeit imperfect relationship between the White House and state governors. This does not mean, however, that a discussion and substantive debate on the issue should not take place based on the historical precedent that has been set in place. To state that it is an impossibility for the federal government to displace the state authority on the issue would be off-base.

            Another case that build offs and assesses the Wickard reasoning is United States v. Lopez. This case measured the authority of Congress under the Commerce Clause in regulating the carrying of handguns. The statute in question focused on the 1990 Gun-Free School Zone Act and the Court considered the power of Congress to legislate on the carrying of the handguns as defined under this act. The government had argued that this power is encompassed under the Commerce Clause because among other arguments the general economic conditions could be impacted because violent crime impacts insurance rates and deters travel due to alleged unsafe conditions. It then made a bold leap in arguing that the presence of handgun firearms in a school zone would have a detrimental impact on learning and would harm the national economy because education is an essential part of it.

            The Supreme Court disagreed in a 5-4 decision, finding that Congress’ broad authority under the Commerce Clause did not extend to this handgun regulation, an aggregate effect of the factors outlined. The Court did, however, clearly identify three areas that could be regulated (1) the use of channels of interstate commerce; (2) the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activitiesand (3) activities that substantially affect or substantially relate to interstate commerce.

            As to the third area, the court assessed factors to discern whether the legislation is an acceptable method to regulate activities that substantially impact interstate commerce. First, must consider whether the activity is economic or non-economic in nature. Second, whether the product moved in interstate commerce. Third, whether there were Congressional findings of a valid economic link between the object and the national interest. Fourth, connected the link was between regulated activity and interstate commerce.

            As applied to our Florida’s orange juice example, a law passed from Congress could plausibly be found Constitutional under this standard unlike the gun issue in Lopez. We begin by finding that the Florida orange juice is in fact a good that would be part of interstate commerce and sent to many states. Producing the orange juice substantially relates to interstate commerce as it is an important national product in demand sold in stores throughout the nation. It is very healthy with nutrients in building up immune systems during virus season. Congress would not be outside its purview in regulating the necessity of the product in challenging a state law or order discontinuing its production.

            When focusing on the substantial relationship area, the factors outlined in Lopez could in fact apply. First, producing the orange juice and selling it to grocery store chains is in fact economic in nature. Second, the product was transported in interstate commerce to various stores throughout the nation to be available for purchase to customers. Third, Congress would likely be able to produce an economic finding and study on the relevance of orange juice financially and in terms of its impact on the nation’s health. Finally, Congress can articulate with the valid law passed the necessity to produce the orange juice and define the degree of economic impact if this staple product was no longer available in stores. All of these factors do not need to be met, but there is a logical basis and argument for them to support the substantial relationship area discussed in Lopez.

            Overall, there is a plausible Commerce Clause argument to be made for Congress to pass laws that impact state decisions made during a virus outbreak that can impact interstate commerce especially in regards to staple goods of the nation. The president would then have the power to enforce the Congressional mandate even if it meant displacing an overbearing state law on the issue. While orange juice production is not necessarily the same as restaurant openings it is just one example that can begin the discussion and logical debate and discourse on defining the boundaries of federal government and state power when considering economic concerns during a virus outbreak.

Faith in School Choice: SCOTUS and the Espinoza Matter

The Supreme Court is scheduled to rule on a major case in June concerning religious freedom as applied to the education system. We address the background and predict the direction the Court will go with respect to this matter.

The matter, known as Espinoza v. Montana Department of Revenue, considers a state tax credit law that offered credit to companies and individuals that donate to private school scholarship funds. There are several private schools in Montana that would be classified as religious and would benefit from the program. The Montana Supreme Court ruled the scholarship aid program unconstitutional per the Montana state constitution because there was an opportunity for direct or indirect funding to religious schools.

The seminal issue in this case that the United States Supreme Court is tackling is:

“Whether it violates the religion clauses or the equal protection clause of the United States Constitution to invalidate a generally available and religiously neutral student-aid program simply because the program affords students the choice of attending religious schools.”[1]

This case invokes a foundational issue of the history of state Blaine amendments and their anti-religious undertone, most specifically targeting Catholics.

What were the Blaine Amendments?

James G. Blaine was a prominent representative, senator, Secretary of State and later recurring presidential candidate in the 1870s and 1880s. While serving in Congress he supported President Grant’s educational policy initiative that emphasized state secular public schooling. This culminated in the creation of the proposed Blaine Amendment that sought to restrict the spread of parochial education as new Catholic communities began to form. It provided as follows:

“No State shall make any law respecting an establishment of religion or prohibiting the free exercise thereof; and no money raised by taxation in any State for the support of public schools, or derived from any public fund therefor, nor any public lands devoted thereto, shall ever be under the control of any religious sect; nor shall any money so raised or lands so devoted be divided between religious sects or denominations.”

Even though it was unsuccessful in being passed by Congress to be incorporated into the U.S. Constitution, many states chose to adopt a version of it in their respective state constitutions. The amendments served Blaine’s political purposes of attracting Protestants to the Republican party while feeding into the Anti-Catholic sentiment of the times. The main religious schools established at the time were Catholic, as are two-thirds of Montana’s private schools are today.

The Direction of the Court and Constitutional Considerations

Based on the lines of questioning posed at oral arguments[2], the final breakdown of this decision could be closer to 5-4, thus invalidating the Montana court’s decision and allowing the tax credit scholarship program to proceed. It is foreseeable that Chief Justice Roberts, Justice Thomas, Justice Alito, Justice Gorsuch and Justice Kavanaugh would vote to uphold the constitutionality of the program. Perhaps Justice Breyer or Justice Kagan may join as they did in the Trinity Lutheran[3] case, but this matter raises issues with a stronger connection to direct student educational opportunities rather than simply the more detached issue of private school institutional funding for school playground tire. A scholarship program for individuals that seek to attend private religious schools may prove to be a bridge too far for the liberal jurists.

Establishment Clause

The Establishment Clause provides “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”  The Court would be wise to consider the concept of what constitutes an Establishment. The tax credit for funding a scholarship for private education on its face does not constitute any Establishment of religion, rather it supports educational opportunities of individuals and their families that decide to embark on the path of private education. There is no requirement that the credit should only apply to Catholic schools or Protestant schools or Hebrew schools or Muslim schools or any other faith that serves as the basis of a private school.  One state religion is not specifically recognized within the definition of private parochial education. This is where the Blaine Amendment fails and should be re-evaluated as it does not have a firm basis under the U.S. Constitution.

Even if the state’s private schools are majority Catholic this does not constitute a basis to recognize Catholics as an establishment religion under the law. Nothing suggests that other faiths were prohibited for developing private schools in Montana and would not also be entitled to the benefits generated by the tax credit program. The Supreme Court has an opportunity to invalidate long embedded laws that have targeted faith-based entities in violation of the text and original public meaning of the Constitution. One could also argue that the broader question of direct vs. indirect funding to religious entities also warrants further consideration and discussion by the court and this case gives more substance to that debate. Furthermore, the concept of tax policy recognition of faith is not unfamiliar. There are tax exemptions and other policy nuanced privileges connected to religion and charitable giving on the national scale.

As discussed in prior pieces, when recognizing an “Establishment” we must look to the founding era of this nation and the many issues it was forced to consider from a religious standpoint. It was recognized that the Church of England played a role in the early colonial age of this nation for encouraging the migration of non-Anglicans to the New World. Religious freedom was a persuasive consideration for the early colonists as they sought to flee from England and the state-run Church of England that was not known to be tolerant of other faiths and Protestant sects. The New World was an opportunity to not allow for a state-run establishment of faith, while still recognizing the importance of faith communities in the geographic areas in which these new colonists settled. The Blaine Amendments’ assault on faith depart far from this premise and one can argue helped set the foundation for further challenges to faith in the public sphere that would occur near the middle of the twentieth century, such as the prayer in school debate.

Equal Protection

An assessment under the Equal Protection Clause should also be considered. The Equal Protection Clause of the 14th Amendment provides that “a state shall not deny to any person within its jurisdiction the equal protection of the laws.”  The legislature had passed the law enabling this program for private schools and without barring religious private schools from participating. The Montana state agency responsible for collecting taxes then declared that religious private schools could not be included under the program because of indirect funding of religious schools.[4] The case reached the Montana Supreme Court and the court held specifically that the program could not include religious institutions, thus deeming it a violation of Montana law. It also concluded that the religious aspect of the program was not severable from the entire program, thus the entire program was invalidated.

While the Montana Supreme Court “remedied” the contradictory nature of the tax agency’s ruling on the program with its invalidation of the entire program, it does not mean that this issue should escape Equal Protection scrutiny. On its face, the actions of the agency to prohibit religious schools from benefiting from the tax credit program for private schools draws itself into conflict with the Equal Protection Clause. This case provides a unique opportunity for the Court to delve into a thorough analysis of the relationship between the two major areas of education and religion.

While education is not recognized as a fundamental right under the Constitution, the program established a means for educational opportunities for families choosing to enroll their children in private schools. The legislature did not prohibit it from applying to private religious schools. When it was decided that those individuals sought to take advantage of the already passed law, but apply it to a private religious school, the tax agency acted to deprive them of that choice. The agency’s decision by its very nature denied the individuals equal protection of the pre-existing law just because the private educational institution was religious based. The initial law passed should be found Constitutional. On simply Equal Protection grounds, the government had a rational basis for providing further educational opportunities for its students. Religious-based schools can be classified as private schools and the law encompassed private schools in Montana.

Free Exercise

If, however, one still accepts the Montana court’s decision that no Equal Protection violation was present by eliminating the private religious schools’ scholarship entitlement because Blaine takes priority it still does not remedy the problem that the Blaine Amendment itself poses. With this matter invoking a religious component, not just an educational one, there is an argument to be made that Blaine raises potential Free Exercise Clause violations here and therefore heightens the scope of this analysis. The Supreme Court has a checkered history of how to assess Free Exercise Clause violations.

In sum, for the purposes of this matter, the Supreme Court should use the Strict Scrutiny test that it has used in the past. This test provides that the state must have a compelling government interest to invalidate. As applied to this matter, it would be a compelling interest to refuse to accommodate the scholarship program as applied to religious schools. The basis of the Blaine Amendment to disallow direct and indirect funding to religious institutions infringes upon the Free Exercise Clause. One must question and press the state on how cutting off religious education funding is compelling, especially when the roots of this law were enacted under a discriminatory basis.

As discussed earlier, perhaps it centers around establishment concerns and the fear of state mandating a specific religious belief or practice. This, however, has its limits. Today, we live in a heterogeneous society with respect to the many faith traditions that are practiced in the United States. Montana may have more Catholic private schools that exist, but that does not mean that other faith beliefs and traditions are unwelcome to establish schools there. In addition, the state would likely have difficulty establishing that despite the numerous Catholic schools, that the bishop is the head of the state government or other religious faiths are disallowed to practice.

Furthermore, the concept of choice must be explored – does the state have a compelling interest to deprive or significantly burden their residents of educational decisions when it comes to religious schooling?  An example of how this could apply is if a religious school in the state was found to be promoting societal unrest and violence in the community. The public interest is therefore directly threatened by such an institution; therefore, the state may have a compelling even if its temporary, interest to prohibit support to these religious institutions. That is not present here, a law was duly passed allowing for the tax credit scholarship program to be permitted for private schooling, there so no compelling interest to deprive these institutions of indirect or direct funding even if they are religious in nature.

Conclusion

Overall, on several bases the Blaine Amendment should be found unconstitutional. Hopefully, the Supreme Court will use this opportunity to clarify the state relationship with religious education and challenge the Blaine Amendment legal framework that was wrongly enacted over 120 years ago and is in direct conflict with the Constitution.


[1] https://www.scotusblog.com/case-files/cases/espinoza-v-montana-department-of-revenue/

[2] https://www.nationalreview.com/2020/01/religious-liberty-supreme-court-considers-challenge-to-blaine-amendment-espinoza-v-montana-department-of-revenue/

[3] In Trinity Lutheran, the Supreme Court assessed if a private Missouri faith-based school was entitled to receive state funding through grants to provide safety playground tire on its playground.  The Court ultimately found in a 7-2 vote that the failure to provide state funding to the faith-based school like the non-religious private schools violated the Free Exercise Clause.

[4] https://www.nationalreview.com/bench-memos/the-long-history-of-blaine-amendment-bigotry/

Clarence Thomas- An American Icon

U.S. Supreme Court Justice Clarence Thomas recently spoke at the Federalist Society Florida Lawyer’s Chapter Conference. His remarks were inspiring as all in attendance were treated to a fascinating dialogue between the justice and his former clerk, D.C. Circuit Judge Greg Katsas. Justice Thomas shared his life story and his journey to the Supreme Court. He also provided some insight into his judicial philosophy.  The following day, there was a screening of his new documentary, “Created Equal” that further elaborated on his life story and was designed as a series of interviews with Justice Thomas. This piece will focus on some highlights and what makes Justice Thomas an American icon that should be revered in society today.

Justice Thomas begins by discussing his early life that was spent with his mother and brother growing up in the poverty of the deep south- him and his brother would often roam the streets while his mother was at work and rarely attended school. Eventually, his mother realized she was not in a strong enough position to provide for their needs and sent him and his brother off to live and be raised by his Grandfather and Grandmother. This was the first turning point in Justice Thomas’ life. His Grandfather instilled in him a sense of moral discipline, Catholic faith and hard work. In addition to attending school, the young Justice Thomas was expected to pitch in on the family farm and assist his Grandfather with oil deliveries. His Grandfather exerted “tough love” and this would enhance Justice Thomas’ early development.

Later Justice Thomas entered into the seminary and after initial reluctance, his Grandfather supported him and said if he is was going to invest himself into it, he was to complete it (a lesson he would later use during his Supreme Court hearings).  While attending the seminary, however, he experienced some bouts with racism and began to question his purpose there. This was his second major turning point. After Martin Luther King Jr. was assassinated a fellow seminarian was heard lauding it and this was the last straw for Thomas. Shortly, thereafter, in the midst of the racial tension occurring in society, most notably in the deep south, he left the seminary. This act deeply strained his relationship with his Grandfather who had always encouraged Thomas to persevere and not make excuses despite the acts of others. Thomas then went to live with his mother and then later enrolled in the College of the Holy Cross for college. There he joined some special interest organizations focused on radical activism in what he described as the “Black Power Movement” and entered a rebel phase. He described being a participant in charged protests in the nearby community concerning race relations.

Although he spent considerable time with the activism, he was a good student and following graduation was admitted into Yale Law School. There he did well in school, but again was reminded of the state of race relations. He questioned his place there and whether it was more out of special treatment or for his intellectual prowess. On interviews following graduation, he found it difficult to land a job despite interviewing in several cities in what he described as country club style hiring practices. An African-American from Yale would never be viewed in the same light as a Caucasian because of the preferences questions.

He eventually found a position with Missouri Attorney General Jack Danforth in St. Louis. Justice Thomas spoke fondly of his time there and of Danforth serving as a mentor to him early in his career. This was a third major turning point in his life. Danforth would eventually be elected to the United States Senate and following his election, Thomas would work for a time at Monsanto Chemical Corporation.

Later, Justice Thomas eventually followed now-Senator Danforth to D.C. as a legislative assistant for a few years. After working up the D.C. ranks and establishing a solid network he was eventually named chairman of the Equal Employment Opportunity Commission by President Reagan. Following his time serving in the Reagan Administration, George H.W. Bush became President and promptly named Thomas to serve as a circuit judge on the D.C. Circuit, a court widely seen as having the most influence below the Supreme Court.

Justice Thomas sat on the D.C. Circuit for a short time before Justice Thurgood Marshall announced his retirement from the Supreme Court. President Bush then had a difficult decision to make on who he would nominate to replace Marshall. Justice Thomas openly admitted when asked about being appointed as a judge, “its not something I was even looking for or wanted, but it is something God wanted, so I was obliged to follow his will.” This was another turning point in Justice Thomas’ life.  President Bush decided to nominate Justice Thomas and the confirmation hearings went relatively smooth except with regards to clear partisan and awkwardly phrased questions from the senate panel in regards to the abortion issue- a common thread from the Bork hearings to Kavanaugh hearings in the present day. Justice Thomas described the experience as “you are sitting in front of questioners who have no idea what they heck they are talking about” in reference to the political hits disguised as “legal theory”. One exchange fondly recounted and shown on footage is Joe Biden trying to engage in a deep philosophical natural law question, but awkwardly phrased to try and pry an answer on abortion from Justice Thomas.

On the eve of the final vote, however, the hearings took an extreme turn.  Anita Hill, a former staffer for Justice Thomas and presently a law professor made sexual harassment allegations against him. These resulted in separate hearings before the final vote with the attention of the entire nation.

Shortly before the news broke, Justice Thomas had thought it strange that the FBI had set up a follow up background call with him to ask questions. When the news eventually broke, he was befuddled about the allegations and understood them as to having no basis. He had to ask his wife, who watched the testimony provided by Hill (he did not watch) because he could not recollect any issues he had. He noted that Anita Hill had commonly solicited his help for professional opportunities stemming from her time in service under him and event went so far as to drive him to the airport following some of his presentations. In terms of the testimony itself, when Anita Hill is speaking as provided in the documentary- after the questions were asked – she commonly had looked down and had to wait a second as if to recollect a memorized statement in response to the questioning. It gave the impression that she was trained to speak certain words. In a notable exchange with a senator who pointed out some contradictions in her story such as why she sought his help and kept in contact with him despite the “allegations” for several years she responded, “you know that is a really good question, I do not even know.” There were many signs of dishonesty, but the media persisted with the narrative.

The ensuing brawl of the news media put enormous pressure on his family. Similar to the Kavanaugh hearings in the present day, his family relied on private prayer and bible study with the support of friends. The Thomas family kept their faith through the trying times and it brought them through the experience.

At one point, the hearings and confirmation were looking dim with the fueling of the mass media and a Democrat-controlled senate chamber and Thomas knew that he had to rise to the challenge. Footage in the documentary highlighted his discussion with Senator Danforth shortly before his own testimony before the final vote. As they discussed his emotions, Justice Thomas openly stated the entire experience felt like a “high-tech lynching” and Danforth encouraged him to present himself and freely speak his emotions so the Americans can see the genuine nature of Justice Thomas, a man so unfairly wronged and the “wrong black guy” per Justice Thomas’ words as a conservative. During his final testimony, he did in fact describe the entire experience as a “high-tech lynching for uppity blacks that dared to think in their own way.” The senators and nation were stunned by those words and statements from the heart. He edged his way to confirmation with a vote of 52-48.

As for Justice Thomas’ tenure on the Supreme Court he has become a pillar of Constitutionalism and one of the greatest judges in the modern age. There are many cases in which Justice Thomas does not shy away from an unpopular outcome or reasoning and gladly distinguishes  himself from fellow judges on the bench when composing his opinions if he finds that is what the Constitution requires. We have discussed some of these opinions in detail in other pieces. He has become a rebel in this sense in a good manner channeling his energy and intellect to upholding fundamental constitutional principles despite being in the face of unfair and misinformed resistance by the media and other members of the legal academy. This mentality should be lauded. He further grasps a major premise that if a case deciding an issue was wrongly decided in the past, there is no obligation to continue to uphold bad law rather the obligation is to correct the error and make it Constitutionally compatible. He does not lose sight of where his power as a jurist flows from, the Constitution itself and reminds us that is the overarching arbiter of decision making, not policy concerns and issues best addressed by the legislature.

Overall, Justice Thomas’ talk at the Florida Federalist Society Lawyer’s Chapter and documentary, “Created Equal” were wonderful experiences and should be shown in schools and definitely can engage the interest of people in legal and in non-legal circles alike. It’s the story of a man who persevered through the obstacles faced in life in many ways, had moments when he veered off and questioned his purpose, but with God’s grace found himself to realign back on the path his Grandfather had set forth for him. His is a true American story, an icon of our time and who we all should be grateful sits on the highest court in the land. It reminds us that in America, even a poor child in the streets can one day become an iconic figure and inspire others.