Freedom Line Blog

Today is an important day in United States Supreme Court history, and in the ongoing battle to protect the individual freedoms enshrined in the Second Amendment.

Two years ago, the Court finally and explicitly confirmed that the Second Amendment confers an individual right to keep and bear arms in District of Columbia v. Heller. Today, it hears oral argument in McDonald v. Chicago to determine whether that right protects citizens against state infringement as well as in federal jurisdictions such as Washington, D.C.

Everyday citizens unfamiliar with Court precedent and the legal contortions distinguishing which provisions of the Bill of Rights will or will not be protected will scratch their heads and wonder, “if the First Amendment applies to protect citizens against state infringement, why not the Second Amendment?”  The Court has also recognized Fourth, Fifth, Sixth and Eighth Amendment protections against state violation.  The legal niceties, however, are less important than the overarching illogic that even attempts to render Second Amendment rights less important or worthy of protection.

The simple fact is that this case illustrates once again the way in which politicized judges decide which rights they consider important based upon their own personal political preferences.  Our Founding Fathers did not draft the Constitution as a byzantine code to be understood and applied only by conceited judges.  Rather, they intentionally began the Constitution with the words, “We the People” and created it to be understood, treasured and applied by everyday citizens.

Accordingly, the legal nuances are less important than the overall theme:  big government once again seeks to infringe upon citizens’ individual freedoms and Constitutional rights via court decree.  Fortunately, the Court appears likely to side with the Second Amendment over the city of Chicago.  But even if it abandons logic and principle by upholding Chicago’s prohibition, the battle will continue with citizens exercising their rights at the federal, state and local legislative and executive levels.  In which case gun “control” advocates may ultimately come to regret a fleeting Pyrrhic judicial triumph.

Those watching last night’s State of the Union Address may have noticed that a third of the Supreme Court wasn’t in attendance. It couldn’t have been an ideological statement because the absentees included Associate Justices John Paul Stevens, Antonin Scalia, and Clarence Thomas. After President Obama castigated the Court’s recent ruling on national television, ABC’s Jake Tapper reports that insult could lead to the other six members finding better things to do during next year’s speech.

At the end of Tapper’s piece is an intriguing quote from Franklin D. Roosevelt about his thoughts while getting sworn in by the Chief Justice for his second term as president.

After his second inaugural, FDR recalled to an aide, when “the Chief Justice read me the oath and came to the words ‘support the Constitution of the United States’ I felt like saying: ‘Yes, but it’s the Constitution as I understand it, flexible enough to meet any new problem of democracy—not the kind of Constitution your Court has raised up as a barrier to progress and democracy.’”

Tapper doesn’t comment on the quote, but it’s worth mentioning that FDR’s deviation from the Constitutionally-prescribed oath says a lot about the Executive’s abuse of power up through Obama. Is there any doubt FDR’s current successor feels any differently about his ability to judge how flexible our fundamental laws are?

The recent weeks haven’t been kind to President Obama.   Support continues to drop for his health care bill, his poll numbers are falling and his filibuster-proof majority has been lost.

Well, last night, President Obama took out some of his frustration by criticizing the Supreme Court in front of a national audience.  As the President, he has the power to trounce on judicial independence, but his display last night was historic.

According to the Legal Times, only once has a President publicly criticized the Supreme Court during a State of the Union address.   Not surprisingly, it was President Franklin Roosevelt in 1937, and even FDR didn’t call for Congress to overturn the Court (thought the justices would eventually start to capitulate shortly after the address).

Here is FDR’s attempt at judicial intimidation:

The Judicial branch also is asked by the people to do its part in making democracy successful. We do not ask the Courts to call non-existent powers into being, but we have a right to expect that conceded powers or those legitimately implied shall be made effective instruments for the common good. The process of our democracy must not be imperiled by the denial of essential powers of free government.

Here is President Obama’s criticism:

Last week, the Supreme Court reversed a century of law to open the floodgates for special interests — including foreign corporations — to spend without limit in our elections. Well I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. They should be decided by the American people, and that’s why I’m urging Democrats and Republicans to pass a bill that helps to right this wrong.

As Justice Alito gestured during the remarks, the Court did not reverse “a century of law” in its Citizens United decision.  Austin v. Michigan Chamber of Commerce was decided in 1990, not 1910.  Linda Greenhouse over at the New York Times calls out the President on this as well.

As a former constitutional law professor, President Obama should either fire his speechwriters or hit the books.

Yesterday’s United States Supreme Court decision in Citizens United v. Federal Election Commission was a welcome victory for free speech and the First Amendment.

By overturning byzantine prohibitions against the very type of fundamental electioneering speech most valued by our Founding Fathers when they drafted the First Amendment itself, the Court reclaimed enormous territory in freedom’s war against incumbent-protecting censorship.

While welcome, however, the decision also carries political implications about which conservatives must remain alert.  Liberals, predictably, hysterically focus upon the sinister prospect of free speech for those big, bad, evil corporations that actually employ people and produce things.  For instance, resident MSNBC village idiot Keith Olbermann rendered himself not only the world’s worst person, but also the most idiotic, when he suggested the decision was even worse than the infamous Dred Scott slavery decision of 1857.

But apart from the Olbermann crowd’s inanity, one negative prospect is Big Labor’s new ability to engage in direct electioneering communications.

Don’t get us wrong – union bosses should be just as free as other groups to exercise their free speech rights, so long as the dollars used to fund that speech aren’t forcibly wrenched from reluctant members’ wages.  As long as Big Labor isn’t afforded particularized protected status, fair is fair.

Nevertheless, expect new union efforts to not only flood the airwaves, but also to increase the amount of members’ dues used to fund those efforts, as well as even more pressure to enact legislative agenda items.  In particular, we can anticipate all new efforts to enact card-check, which would literally eliminate the secret ballot in union elections, and empower federal bureaucrats to dictate wages and working conditions via mandatory arbitration. In 2008 alone, two unions (the American Federation of State, County and Municipal Employees and the infamous Service Employees International Union) spent $58 million of their hard-working members’ wages on political campaigns.

They’ll only scheme to increase that amount now.

Card-check legislation appeared all but dead, but this device to increase Big Labor’s membership rolls, and consequently the amount of money it can spend electing liberals across the country, will receive even more push now.

We applaud the Supreme Court’s decision, but we conservatives must remain wary of Big Labor’s upcoming campaign.

Rather than trudge through the entire 183-page decision in Citizens United, here are a few choice passages from the opinion. Enjoy.

As amended by §203 of the Bipartisan Campaign Reform Act of 2002 (BCRA), federal law prohibits corporations and unions from using their general treasury funds to make independent expenditures for speech that is an “electioneering communication” or for speech that expressly advocates the election or defeat of a candidate.

In January 2008, appellant Citizens United, a nonprofit corporation, released a documentary (hereinafter Hillary) critical of then-Senator Hillary Clinton, a candidate for her party’s Presidential nomination. Anticipating that it would make Hillary available on cable television through video-on-demand within 30 days of primary elections. It feared, however, that both the film and the ads would be covered by §441b’s ban on corporate funded independent expenditures, thus subjecting the corporation to civil and criminal penalties under §437g.

There are short timeframes in which speech can have influence. The need or relevance of the speech will often first be apparent at this stage in the campaign. The decision to speak is made in the heat of political campaigns, when speakers react to messages conveyed by others. A speaker’s ability to engage in political speech that could have a chance of persuading voters is stifled if the speaker must first commence a protracted lawsuit.

In McConnell v. Federal Election Comm’n, this Court upheld limits on electioneering communications in a facial challenge, relying on the holding in Austin v. Michigan Chamber of Commerce, that political speech may be banned based on the speaker’s corporate identity. Austin “uph[eld] a direct restriction on the independent expenditure of funds for political speech for the first time in [this Court’s] history.” There, the Michigan Chamber of Commerce sought to use general treasury funds to run a newspaper ad supporting a specific candidate. Michigan law, however, prohibited corporate independent expenditures that supported or opposed any candidate for state office.

Austin is overruled, and thus provides no basis for allowing the Government to limit corporate independent expenditures.

The First Amendment prohibits Congress from fining or jailing citizens, or associations of citizens, for engaging in political speech, but Austin’s antidistortion rationale would permit the Government to ban political speech because the speaker is an association with a corporate form.

Austin interferes with the “open marketplace”of ideas protected by the First Amendment. Its censorship is vast in its reach, suppressing the speech of both for-profit and nonprofit, both small and large, corporations.

Political speech is so ingrained in this country’s culture that speakers find ways around campaign finance laws. Rapid changes in technology—and the creative dynamic inherent in the concept of free expression—counsel against upholding a law that restricts political speech in certain media or by certain speakers.

The Government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether.

The long-awaited case of Citizens United v. FEC was decided today and defenders of the First Amendment received a welcome surprise.

The Court sided with Citizens United and gave another blow to McCain-Feingold’s onerous campaign finance restrictions.

Click here for the full opinion. 

The decision was 5-4, with Kennedy, Thomas, Scalia, Alito and Roberts siding with the First Amendment.  The newest justice, Sotomayor, joined with Stevens, Breyer and Ginsburg in dissent.

Here is how the Court broke down the opinion:

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA and ALITO, JJ., joined, in which THOMAS, J., joined as to all but Part IV, and in which STEVENS, GINSBURG, BREYER, and SOTOMAYOR, JJ., joined as to Part IV. ROBERTS, C. J., filed a concurring opinion, in which ALITO, J., joined. SCALIA, J., filed a concurring opinion, in which ALITO, J., joined, and in which THOMAS, J., joined in part. STEVENS, J., filed an opinion concurring in part and dissenting in part,in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. THOMAS, J., filed an opinion concurring in part and dissenting in part.

The Supreme Court, unexpectedly, did not issue its opinion in the First Amendment case of Citizens United v. FEC.  The Court heard oral arguments last September and many court watchers expected an opinion today.

Perhaps this delay means the opinion is larger and more sweeping than many observers anticipated.  The first major Supreme Court case reviewing McCain-Feingold, McConnell v. FEC, weighed in at 298 pages.  Will Citizens United top that figure?

The Court likely made up its mind last year but perhaps the long delay means that the lobbying continues.

Stay tuned for more coverage.

Today, the U.S. Supreme Court resumes its 2009-2010 term with a round of two oral arguments.  Though the two cases that pit Alabama v. North Carolina and Briscoe v. Virginia have national legal implications, court watchers are eagerly awaiting other consequential decisions this term.

The fate of the First Amendment and campaign finance reform could be decided as early as tomorrow in Citizens United v. FEC.  The justices reargued the case on September 9, 2009, but the Court has yet to report a decision.  With federal primary elections less than a month away, candidates and First Amendment lawyers seek guidance from the Court as soon as possible.

The best case scenario would be a broad sweeping opinion striking down many of McCain-Feingold’s onerous First Amendment restrictions.

In addition, the spring term ushers in a new round of retirement speculation.  Justice John Paul Stevens is the oldest member of the Court, 89, and has not hired his full slate of clerks for the next Supreme Court term.

This article also mentioned the possible retirement of Justice Antonin Scalia.  Any vacancy would cause political wrangling in the Senate but a Scalia departure, coupled with President Obama’s liberal record on judges, would result in a judicial and political Armageddon unseen since the days of Judge Robert Bork.

Whatever occurs during the conclusion of this Supreme Court term will surely have major implications for individual rights and the future of our Constitution.

U.S. Solicitor General Elena Kagan seeks to destroy the fundamental principle that “[the] Constitution creates a Federal Government of enumerated powers”, judging by her brief in the U.S. Supreme Court case of U.S. v. Comstock.  The government’s brief demonstrates just how expansive she views federal power under the Constitution.

The Cato Institute, a libertarian think-tank in Washington, D.C., is challenging a federal criminal statute on the grounds that Congress acted without constitutional authority when it passed the law.

Cato and other challengers in Comstock argue that the federal government cannot use the Necessary and Proper Clause in Article 1 §8 of the Constitution to justify any and all federal action.   The government, on the other hand, argues that the Necessary and Proper Clause and the Commerce Clause in §8 allow the government to enact a range of federal criminal statutes, even if such laws are typically the province of state power.

Of course, by the government’s logic, if the Commerce Clause works to authorize a broad array of criminal laws, then what can’t the government do?  Since the government deems almost any human action to “substantially affect interstate commerce,” then there is nothing that evades federal power.  For example, in this argument audio clip, the government claims federal power is virtually limitless.

The Supreme Court has (unfortunately) already held that growing excess wheat for private consumption falls within the Commerce Clause, and that growing marijuana for private consumption falls within the federal purview as well. (Justices Scalia and Kennedy sided with the government in the latter case.)

As the Cato Institute argued in its brief, “Neither the Necessary and Proper Clause nor the Commerce Clause is a permissible footing for the Act and, therefore, the Act is unconstitutional.  As this Court recognized almost 150 years ago, ‘[no] graver question was ever considered by this court, nor one which more nearly concerns the rights of the whole,’ than the Government’s unconstitutional assertion of power against its own citizens.”

Elena Kagan, in the government’s reply brief, countered, “A commitment under Section 4248 [the act in question] is justified by the Necessary and Proper Clause in combination with whatever enumerated power or powers supported the federal prosecution and custody of the individual in the first instance.”

By June of next year, we’ll learn if the Court would prefer returning to “first principles.”  It could actually limit Congress’ expansive use of Article I § 8, or the justices could continue to allow unbridled federal action whenever the government deems it politically expedient.

Click here for the Cato brief.  For the government’s brief, click here.  For CFIF on the Constitution, click here.

By now, most of you have heard that New York’s highest court, the Court of Appeals, has ruled in favor of New York City’s use of eminent domain.

This opinion strikes a huge blow to the state of property rights across the nation and it’s another sad consequence of the U.S. Supreme Court’s dreadful decision in Kelo v. New London.

The land in the New York case wasn’t blighted or vacant.  Instead, certain well-heeled individuals with connections to the city government thought that they could use their power to construct … a basketball arena for the New Jersey Nets.  Seeing as how the Nets haven’t won a game this year, perhaps they ought to take up residence in a local high school gym instead of forcing landowners out of their property.

If you have the stomach for it, the full New York Court of Appeals opinion is available here.

The people who brought – and won – District of Columbia v. Heller (aka “the D.C. Gun Rights Case”) are back with a lawsuit challenging a nearly identical ban on handgun possession in Chicago, IL. The Supreme Court ruled in Heller that the Second Amendment protected an individual’s right to own and use a firearm (not a militia’s) in the District of Columbia (i.e. a federal jurisdiction). Now the question in McDonald v. City of Chicago is whether the Supreme Court will extend its ruling in Heller to cover McDonald’s right to own and use a firearm to invalidate a state law.

But wait; there’s more! The lawyers for McDonald are advancing a provocative theory that could expand the use of “Originalist” interpretation of the Constitution. Close followers of the Court will recall that Justice Scalia is the most well known proponent of interpreting the Constitution in light of its original and public understanding of its text at the time it was ratified (i.e. 1791). In fact, Justice Scalia’s majority opinion in Heller was a triumph of sorts for Originalism as an authoritative method of interpretation. In their brief, McDonald’s lawyers argue for using Originalism to overturn a 136 year old precedent in favor of interpreting the 14th Amendment as its framers intended. That is, to guarantee the extension of the federal bill of rights against encroaching state laws.

Apart from federalism concerns, the use of the 14th Amendment to reinterpret the application of the first ten amendments could – as this blog post from the Wall Street Journal explains – make Originalism more attractive to liberal members of the Court. Why? Because instead of looking at 1791 as Scalia does, Justices like Breyer and Ginsburg would look to 1868, the year the 14th Amendment was ratified. (A time when America was rethinking the scope of state’s rights.)

The Supreme Court’s ruling in this case next year promises to be consequential. As usual, what’s at stake is far bigger than the surface level issue that got the parties through the door. Stay tuned…

These days, the future of free speech looks grim.  However, the WSJ and FantasySCOTUS predict that the government will lose in the pivotal case of Citizens United v. Federal Election Commission.

Of the 286 predictions, 67 percent believe that the Supreme Court will overrule the D.C. Circuit Court and find that “Hillary: The Movie” is not covered by current campaign finance regulations.  The final verdict: free speech wins.

That’s the good news.  The bad news is that these are just predictions and the longer the Court sits on the opinion, the more free speech suffers.

Read more here, here and here.

We at CFIF have noted before that death penalty opponents are unlikely to stop at the death penalty if their misplaced abolition movement succeeded.  Rather, we have long predicted that they would immediately move toward abolishing life imprisonment, using the same arguments that they use against the death penalty now.

Well, we didn’t have to wait long.  In two cases to be heard this term, the Supreme Court will determine whether life imprisonment for convicts under the age of 18 constitutes “cruel and unusual punishment” in violation of the Eighth Amendment to the Constitution.

In one case, Joe Sullivan was sentenced to life in prison in 1989 after committing 17 prior offenses that included assault, burglary and even animal cruelty, even though he was only 13 at the time.  In the second case, 16-year-old Terrance Graham was sentenced to life in prison for armed robbery after a similarly extensive criminal record.  People of reasonable minds can disagree on whether they would have imposed the penalty of life imprisonment for someone of that age, but that isn’t the question.  Rather, the question is whether judges should be prohibited in every case from imposing a penalty that can protect society against the criminal menace presented by some incorrigible criminals.

If soft-on-crime activists succeed, what is next?

Next week, the U.S. Supreme Court will rehear arguments in Citizens United v. Federal Elections Commission, a case that could reverse certain limitations on core political speech imposed by the the 2002 McCain-Feingold law and other chilling precedents.

In an op-ed published today on Human Events Online, CFIF director of public policy Sam Batkins writes:

Citizens United is the first of three cases in which interested court-watchers will have their first opportunity to observe [newly confirmed] Justice Sotomayor and get a better idea of her impact on the jurisprudential leaning of the Court.

In addition to Citizens United, the Court, including Justice Sotomayor, is scheduled to hear other high-profile cases after its term formally begins in October on issues dealing with the Establishment Clause and property rights, among others.

As Batkins notes:

Many court-watchers and scholars have reviewed Justice Sotomayor’s lengthy record as a lower court judge without really being able to predict her judicial philosophy on many of the hot-button issues before the Supreme Court. Soon, however, we’ll all be provided more clarity, at least on issues dealing with property rights, the establishment clause and political speech. 

Read the the entire op-ed here.