Supreme Court Delivers a Major Victory for Freedom of Speech—

Court Invalidates Prohibition Against

Corporate Expenditures for Political Purposes

Citizens United v. Federal Election Commission, 558 U.S. ___ (2010)

by C. Paul Smith

On January 21, 2010, the Supreme Court ruled (5-4) in Citizens United v. Federal Election Commission, 558 U.S. ___ (2010) that the federal law prohibiting corporations from making independent expenditures for “electioneering communications” is unconstitutional.  This ruling invalidated an important provision in the Bipartisan Campaign Reform Act of 2002 (BRAC).  President Barack Obama announced his disagreement with this decision a few days later in his State of the Union Address, when he incorrectly chastised the Supreme Court for wrongly overturning a century of settled law on this important issue.

I don’t ever recall seeing the President openly attacking the Supreme Court in a State of the Union Address.  The impropriety of this was apparently lost on President Obama—who committed three distinct errors:  (1) The State of the Union Address, an event at which all three branches of the government convene, is not the proper forum for the President (one Branch) to chastise another Branch (the Judiciary); (2) The President’s statement that the Supreme Court had “reversed a century of law” was incorrect and misleading; and (3) President Obama failed to appreciate that this Supreme Court ruling and opinion was a good and important decision to strengthen the freedoms of speech and press in America.

The Citizens United decision can be summarized as follows:  It struck down the BCRA provision (2 U.S.C. Sec. 441b) that prohibits corporations from making political communications within 30 days of a primary and within 60 days of a general election.  There are two principal reasons why the Court struck down this provision:  First, there is no valid constitutional reason to discriminate

against corporate speech versus the speech of any other entity.  Second, Section 441b exempted public media corporations from the prohibition—and there is no logical or legal basis for treating public media corporations differently.  There exists no justifiable reason for this disparate treatment of corporations in their exercise of political speech.  There is no constitutional basis for penalizing certain corporate speech based upon who the speaker is.

Once the Court determined that the corporate prohibition was wrong, they next had to address the 1990 case of Austin v. Michigan Chamber of Commerce, 494 U.S. 652, where the Supreme Court held for the first time that the political speech of corporations may be banned.  As Justice Kennedy explained, the principal of stare decisis prevents the Supreme Court from overturning prior decisions “unless the most convincing of reasons demonstrates that adherence to it puts us on a course that is sure error.”  The Court found such to exist (J. Kennedy, Slip Opinion, p. 47); the Court found that “Austin abandoned First Amendment principles” (J. Kennedy, Slip Opinion, p. 48) and therefore the Court overturned Austin.  The Court stated that Austin was actually the aberration—that Austin “itself contravened this Court’s earlier precedents in Buckley [1976] and Bellotti [1978].  Ibid. The Court pointed out that when the Supreme Court first considered the constitutionality of the BCRA in McConnell v. Federal Election Commission, 540 U.S. 93 (2003), that no one argued in that case that the Austin case was wrong and should be reversed.  So the McConnell ruling did not address the fundamental issue that now requires the Court to invalidate this important part of the BCRA.1

Thus, the Citizens United decision overturned a 20-year-old case, that was manifestly incorrect; there was no 100-year-old precedent that was overturned in Citizens United.

The Dissenting Justices argued that stare decisis should uphold the corporate prohibitions of the BCRA, and prevents the Court from revisiting the Austin case.  The Majority disagreed.

The Dissenting Justices also argued that the corporate prohibition helps to prevent corruption of elections by preventing corporations from buying elections with infusions of their monies.  But the Majority found that the prohibition against indirect corporate speech was without constitutional merit; that the alleged corrupting influence cannot be shown; and that the disparate treatment of media corporations from other corporations is a blatant violation of First Amendment principles.

On another provision of the BCRA, the Court upheld the BCRA requirement (Sections 201 and 311) that the identity of the speaker of electioneering speech must be disclosed and reported.  Justice Thomas was the lone dissenter to this ruling.  The Court acknowledged that this imposed a minimal restriction on speech, but that the requirement enabled voters to be fully informed of who is speaking, and thus better enabled to give proper weight to the messages.  (J. Kennedy, Slip Opinion, pp. 52-55.)

Supreme Court “Global Warming” Ruling—

A Monument to Bad Science and Judicial Activism

Massachusetts v. Environmental Protection Agency,  549 U.S. ___ (2007)

by C. Paul Smith

It has been three years since the Supreme Court handed down its decision in Massachusetts v. Environmental Protection Agency, 549 U.S. ___ (2007).  But the significance of this case requires that it be exposed and discussed.  The Supreme Court ruled 5-4 in this case that the EPA “abdicated its responsibility under the Clean Air Act to regulate the emissions of four greenhouse gases, including carbon dioxide.”  In this case the Supreme Court sided with speculation over scientific evidence, as it endorsed the man-made global warming fanatics, whose purposes attack America’s economic strength based upon unsupported speculation.

This is a ruling of profound significance for America.  The Supreme Court (by a slim majority [5-4] leaped forward to conclude that man-made C02 emissions (a) cause global warming, (b) are increasing too rapidly, and (c) that America will suffer catastrophic damages if the EPA does not do something to stop these increases.   The problems with the Massachusetts v. EPA opinion are fundamental and far-reaching.  This opinion stands with Lawrence v. Texas and Boumediene v. Bush as examples of a slim majority of five Justices who abandoned established constitutional principles and echoed politically popular themes to reach a pre-determined result.   The legal processes and analysis of the majority represents a departure from intellectual honesty and disciplined analysis, and stands as a blatant example of judicial activism.

1. 1. The Standing Problem. The

Supreme Court never should have heard this case because Massachusetts did not have standing to bring this case.  It lacked standing because it never articulated any “particularized injury.”  Rather Massachusetts only asserted that global warming was “harmful to humanity at large” (Robert, C.J., dissenting, p. 7).  The injuries that Massachusetts alleged were all non-specific and speculative (Ibid. 8).  In addition, some of the asserted injuries were specifically admitted to be caused by other factors.  For example, it was admitted that a “significan[t]” cause of the projected loss of Massachusetts’ shore line was due to the land’s sinking (Ibid. p. 8).  Previously the Court has held that “[a]llegations of possible future injury do not satisfy the requirements of Art. III” [the injury requirement] (Ibid. p. 9).  But the majority disregarded this, and treated speculation to be specific, proven facts.  As the Chief Justice stated:

The Court ignores the complexities of global warming, and does so by now disregarding the “particularized” injury it relied on in step one, and using the dire nature of global warming itself as a bootstrap for finding causation and redressability. Ibid.p.10.

Although the EPA set forth the complex reasons[1] that prevented it from ruling that green house gases caused global warming, the Court either disregarded or rejected those reasons, and went on to require the EPA to rule that green house gases cause global warming.  The Supreme Court ruled that CO2 is a pollutant that causes global warming; the Supreme Court said that the EPA was wrong for not concluding this.  The Chief Justice concluded that it is “pure conjecture to suppose that EPA regulation of new automobile emissions will likely prevent the loss of Massachusetts coastal land”  (Ibid. p.13).

2.  The statute interpretation problem. Not only did the majority botch the standing issue in its haste to solve the global warming debate, but the majority also botched its fundament task of strictly interpreting a statute.  The majority made two distinct misinterpretations in order to reach its desired result.

First, under Section 202(a)(1) of the Clean Air Act (CAA), there is no authority granted to challenge an action of the EPA until the EPA Administrator makes a “judgment”  (Scalia, J., dissenting, p. 1).  The majority simply ignored this requirement, and held that the EPA should have adjudged that CO2 causes global warming.  There is no justification for imposing this mandate.  The majority holding is blatant judicial activism to achieve a predetermined result.

Second, the majority concluded that CO2 was a pollutant by ignoring the first part of the statutory definition that had to be met in order to regulate CO2.  An “air pollutant” is defined as “any air pollution agent or combination of such agents, including any physical, chemical, . . . substance or matter which is emitted into or otherwise enters the ambient air.”  42 U.S.C. Sec.7602(g).  The majority focused on the latter part of this definition, and reasoned that since CO2 is emitted into the air, therefore it is a pollutant.  But the problem with this is it totally ignores the first part of the definition which states that only “air pollution agent[s]” which are emitted into the air constitute “air pollutants.”  As Justice Scalia pointed out, “[t]he Court simply pretends this half of the definition does not exist” (Ibid. p. 9).  Either the Court ignored the first half, or it used circular reasoning to conclude that CO2 is an air pollutant.  Either way, the reasoning of the majority is flawed.

Conclusion. In conclusion, what do we get—we get a Supreme Court ruling that is scientifically flawed, which was arrived at by ignoring logic and legal precedent, in order to reach a result that would please the global warming fanatics.

99% of Americans will never know about the legal errors that led to this ruling.  Eventually the scientific community will come to acknowledge that the Massachusetts v. EPA case was politically based and scientifically flawed.  But for now, the case represents a theory that is falsely held to be a fact, which has risen to the top by popular demand, regardless of true science.

“Predicting future climate change necessarily involves a complex web of economic and physical factors including:  our ability to predict future global anthropogenic emissions of [greenhouse gases] and aerosols; the fate of these emissions once they enter the atmosphere (e.g., what percentage are absorbed by vegetation or are taken up by the oceans); the impact of those emissions that remain in the atmosphere on the radiative properties of the atmosphere; changes in

critically important climate feedbacks (e.g., changes in cloud cover and ocean circulation); changes in temperature characteristics (e.g., average temperatures, shifts in daytime and evening temperatures); changes in other climatic parameters (e.g., shifts in precipitation, storms); and ultimately the impact of such changes on human health and welfare (e.g., increases or decreases in agricultural productivity, human health impacts).”  App. To Pet. For Cert. A-83 through A-84.

President Obama has applied his rhetorical skills to support the health care reform law, and in so doing he criticizes the free enterprise system.  He chastises businesses for making money.  He blames greedy American capitalists for the recession.  He refuses to acknowledge that bad laws and excessive regulation are primary causes of the credit collapse.  Neither does he acknowledge that the trillions of dollars of new national debt will exacerbate the economic crisis more than help it.  Perhaps the theme of President Obama’s administration is best typified by his adeptness in speaking out of both sides of his mouth.  The very day when he announced his proposed budget—which would increase the national debt ceiling to $14 Trillion—he also called for the government to live within its means, beginning late next year.  Even a fifth grader can see through this.

But the new law is 2,000 pages long—that’s a lot of pages—that’s five, 400-page books.  Who can possibly speak authoritatively on the 2,000-page health care reform law?   Even if someone read it once, he or she would have difficulty mastering what was contained in all those pages.   There can be no doubt that most of the Senators and Congressmen do not comprehend the law that they just passed; even if they were to trim it down to 1,000 pages, or to even 500 pages.  Does this legislative process bother anyone besides me?

When I represent someone in a trial, I try to limit what my client says, because whatever the client says can come back to haunt him or her.  The more words there are, the more likely it is that there will be contradictions, confusion and ambiguity.  Legislation is no different:  The more lengthy the law, the more likely it is to have problems.  Conversely, a short and concise law is less prone to have problems.

With this backdrop, I fully expect the new health care reform law to have multiple problems.

Based upon my observation, here are some of the troubling aspects of the health reform law (HB3200) that have been brought to my attention1:

1. The law will provide insurance to all non-U.S. residents, whether or not they are here legally.  (See Page 50 – section 152)
2. The government will have access to our bank accounts, with authority to make electronic fund transfers from those accounts.  (See Pages 58-59.)
3. The federal government will hire150,000 new employees to administer the new health care law.  (I understand most of these will be with the IRS, who will be using the tax enforcement laws to collect from the taxpayers the funds required to provide universal health care.)
4. The government will set doctor fees, and doctors will be paid the same, regardless of any specialty.  (See pages 241 and 253.)
5. Cancer hospitals will ration care according to the patient’s age.  (See page 272 – section 1145.)
6. The law does not apply to members of Congress, who can have different coverage.

I have heard of so many problems with this law, and the law is so long, that it is almost impossible to discuss it properly.  I heard Senator Harry Reid today proudly claim that the law not only provides health care, but that it will also help the economy and reduce the national debt.  Everything I have learned about the law contradicts this, and I’m not prepared to suspend my common sense and drink the Obama/Reid/Pelosi cool aid.

I take seriously the need to understand both history and economics.  And my study of them causes me to have grave concerns about the health care reform law.   It has too many bad parts; it repudiates and attacks the free enterprise system; it attacks capitalism; it embraces socialism.

And now that President Obama has signed the law, he needs desperately to move on to other issues—hoping that the nation will forget about the health care reform law fiasco.  Desperate for diversion, on March 26^th, President Obama announced that he has reached a nuclear arms reduction agreement with Russia.  There is no urgency for this—except for the diversion it might supply.

But we cannot forget the health care reform law CATASTROPHY.  Because of the grievousness of the flaws in the health care reform law, it must be challenged, exposed, contested, defeated and repealed.  It under-mines the last vestiges of a free enterprise system in America.  It is currently the crowning jewel of the socialists, who in the last 14 months have taken over the automo-bile, banking, insurance and health care industries in America.  This is one law that must not be allowed to stand.

Constitutional Challenges to Obamacare

Within hours after President Obama signed the health care reform law, fourteen states filed law suits seeking to stop the law.2 Wholly apart from the socialism aspect of the new, health care reform law, the law may be unconstitutional for three reasons:  First, the procedure that Congress employed to pass the law (“deeming” the bill passed), may violate Article I, Section 7 of the Constitution.  Second, the substance of the law may exceed the powers of Congress, as set forth in the “Commerce” Clause  (Article I, Section of the Constitution.  Because the health care reform law takes over the insurance industry—which has historically been a matter of private contracts and state domain—the law may be an improper regulation of state commerce.  Congress may only regulate “interstate” commerce.  The new law proposes to transform state-regulated health care and insurance into federally-regulated health care and insurance.  Third, because this law impairs private contracts and takes private property without due process (a violation of the Fifth Amendment of the Constitution), the law may be fatally flawed.3

The Supreme Court has previously upheld both Social Security, Medicaid and Medicare, but those laws were not nearly so far-reaching in attempting to interfere with private industry and private contracts.  It is true that the Supremacy Clause (Article VI) makes the Constitution controlling in areas where both the federal government and the States have concurrent jurisdiction.  But the Commerce Clause and the Tenth Amendment limit the scope of federal legislation, and the current Supreme Court has previously shown its recognition and support of this restrictive interpretation of Congressional power.  Accordingly, in my judgment, at this point there is a good chance that the Supreme Court could invalidate some or all of the new health care reform law.

Stay tuned for the development of these cases that are being filed, some of which will eventually make their way to the Supreme Court.

2 States suing the federal government to stop the health care reform law include:  Alabama, Colorado, Idaho, Florida, Louisiana, Michigan, Nebraska, Pennsylvania,  South Carolina, South Dakota, Texas, Utah, Virginia and Washington.

3 Virginia has an additional basis for challenging the new health care reform law; Virginia has a state law that prohibits federal, unfunded mandates.

Congress and President Obama Make It Official:   We Are Now a Socialist Nation!
–with passage of massive health care reform law—
by C. Paul Smith

At noon today (March 23, 2010), President Barack Obama proudly signed into law the massive health reform bill, which is opposed by all Republican Congressmen and a few Democrat Congressmen.

Since President Obama wants all the credit for cramming this law through, it is only right that this brand of health care be dubbed, “Obamacare.”  And, just to be clear—to make sure you understand what this new law will do—here is a brief summary.

It will provide health care for all Americans, giving coverage to the 38 million uninsured and all others who are able to sneak inside our borders.  Health insurance premiums will go down, and those who don’t have health insurance  and who can afford it will be required to purchase health insurance or pay a federal tax to get the government-provided health care.  It will save the nation a trillion dollars in twenty years.  Everyone will get the best health care.  No one will be denied health care because of pre-existing conditions.   Insurance companies will be prevented from making obscene profits.

Wow!  How could anyone oppose this?

The problem is that this “too good to be true” proposal is just that—it is too good to be true.  Do you really believe that this Obamacare will cure all these ills?   It is amazing that half of the nation cannot see the economic flaws in Obamacare.  But because, in fact, about half the people cannot see clearly, let me take a few minutes to point out what should be obvious to all of us.  Obamacare is nothing less than pure socialism—an economic system that is not economically sustainable; therefore it will fail.  Here is why this health care reform law, if allowed to go forward, will fail.

Can a nation deliver quality health care to 38 million more people than are presently being served, and save $50 Billion a year in doing so?  Does anyone really believe this?  But that is exactly what Obama/Pelosi/Reid are promising.

What will happen to the insurance industry if you require them to insure all pre-existing conditions?  Have you really thought this through?   It will kill the insurance Indus-try, which is based upon contracts and proba-bilities and cost projections.    What’s left will not be insurance—it will be socialism.

How can health insurance premiums go down if insurance companies are required to cover pre-existing conditions?  The answer is they can’t; they can only go up—unless the law requires it.   And if the law requires it, then either the insurance companies will go out of business or taxes will be raised to pay for the increased coverage.   In fact, both will happen.  And just to make sure we kill the insurance companies, the Obamacare law prevents them from making excess profits; you know, corporate greed must be punished in order to re-distribute the wealth to those in need.   Socialists do not understand that profit incentive and competition is what has made America great; and they certainly don’t see that by eliminating profit from business they kill the incentive for excellence, achievement and hard work.   Obamacare will replace an incentive-driven economy with one of entitlements and sloth.  Socialism will work only until the receivers take everything away from those who have.   Then socialism dies, too.  And that is exactly what will happen.   The insurance industry will be killed, and/or transformed into socialism, which will lead to economic ruin.

If everyone is being guaranteed health care—at least 38 million more—and if we are going to save $50 Billion a year in the pro-cess, will we continue to attract the brightest and best people to be doctors and nurses.  No, there will be a marked decline in the number of the best people who elect to be doctors.   Many of the best will choose another field to apply their superior skills and intellect.   But don’t worry, there will be more than enough lesser qualified people to take up the slack and become our doctors of the future.   The result will be a decline in the quality of health care that is offered in America.

The problems wrought by Obamacare are even worse than what I have just described.  It takes a little bit of analysis and education to understand, but not much.   The passage of Obamacare stands as a condemnation of our entire national education system, because the liberal teachers who run our education system have finally succeeded in passage of this self-destructive law.   The liberals are celebrating this political success, even though it is sowing the seeds of economic destruction.  The liberals are oblivious to the serious blow Obamacare has dealt to the economic foundation of America.  Today America has embraced Marx and Lenin and has rejected Adam Smith.

Educating America is the only way to cure the economic poison that America has swallowed today.   But this will be a difficult task; we have a nation that is pre-occupied with getting their entitlements from the rich in order to level the playing field.  Hopefully this poison can be eradicated before it irreversibly cripples America.

Constitutional Challenges to Obamacare

Within hours after President Obama signed the health care reform law, fourteen states filed law suits seeking to stop the law.1 Wholly apart from the socialism aspect of the new, health care reform law, the law may be unconstitutional for three reasons:  First, the procedure that Congress employed to pass the law (“deeming” the bill passed), may violate Article I, Section 7 of the Constitution.  Second, the substance of the law may exceed the powers of Congress, as set forth in the “Commerce” Clause  (Article I, Section of the Constitution.  Because the health care reform law takes over the insurance industry—which has historically been a matter of private contracts and state domain—the law may be an improper regulation of state commerce.  Congress may only regulate “interstate” commerce.  The new law proposes to transform state-regulated health care and insurance into federally-regulated health care and insurance.  Third, because this law impairs private contracts and takes private property without due process (a violation of the Fifth Amendment of the Constitution), the law may be fatally flawed.2

The Supreme Court has previously upheld both Social Security, Medicaid and Medicare, but those laws were not nearly so far-reaching in attempting to interfere with private industry and private contracts.  It is true that the Supremacy Clause (Article VI) makes the Constitution controlling in areas where both the federal government and the States have concurrent jurisdiction.  But the Commerce Clause and the Tenth Amendment limit the scope of federal legislation, and the current Supreme Court has previously shown its recognition and support of this restrictive interpretation of Congressional power.  Accordingly, in my judgment, at this point there is a good chance that the Supreme Court could invalidate some or all of the new health care reform law.

Stay tuned for the development of these cases that are being filed, some of which will eventually make their way to the Supreme Court.

2 Virginia has an additional basis for challenging the new health care reform law; Virginia has a state law that prohibits federal, unfunded mandates.

District of Columbia v. Heller, 554 U.S. _____ (2008)

On June 26, 2008, the Supreme Court issued its ruling in the case of District of Columbia v. Heller, 554 U. S. ______ (2008), holding unconstitutional the District of Columbia law which prohibited the possession of usable handguns in the home. In this 5-4 ruling, the Court held that the right to bear arms in the Second Amendment was an individual right, and not merely the right of a governmental militia.

The question of whether the right to bear arms belonged to the individual or to the militia has been a subject of debate for decades. The only question was which side the Supreme Court would take on the issue. In my opinion, the Supreme Court got it right. But I am concerned and disturbed that vote was so close (5-4). With the Supreme Court’s recent penchant to ignore the principles of stare decisis. I personally have concerns about the permanency of this ruling. Nevertheless, as it now stands, this is a good and important ruling.

D.C. law made it a crime to carry an unregistered firearm, and the registration of handguns was prohibited. Dick Heller sued to enjoin the District of Columbia from enforcing this law, contending that the law violated the Second Amendment of the Constitution. That amendment reads: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

If the Amendment means what it says, then there should be no question that the right spoken of, the right to bear arms, belongs to the “people,” and not to the “militia.” However, this plain reading of the Amendment was challenged by the District of Columbia and by four of the Justices (Stevens, Souter, Ginsberg and Breyer). They argued (1) that the prefatory clause changed the meaning of the operative clause in the Amendment, and (2) that the handgun ban was a reasonable limitation on the right to bear arms that did not violate the general spirit of the Amendment. But the majority rejected both of these assertions.

I. The Majority Opinion

Justice Scalia, who wrote for the majority, pointed out that a prefatory clause (such as “A well regulated Militia, being necessary to the security of a free State”) does not normally modify the operative clause that follows (“the right of the people to keep and bear Arms, shall not be infringed”)—but rather gives one reason as to why the operative clause may be necessary. Justice Scalia said that the normal reading of the two clauses was appropriate here. In fact, he pointed out, the operative clause specifically states that the right belongs to the “people.” The right, therefore, is an individual right of the people.

Justice Scalia further pointed out that the very nature of the militia in the early days of our nation, was that it was comprised of individuals in the community who bore arms. It would have been illogical and contradictory for the Amend-ment to state that the people did not individually possess the right to bear arms. Additionally, he pointed out that if the intent of the amendment was to limit its meaning to only be a right if the militia should need a person’s participation, then there would have been no purpose for the operative clause. Justice Scalia points out that historically the amendment was widely under-stood to recognize an “individual” right, and he found no evidence to the contrary. Finally, Justice Scalia pointed out that the Second Amendment did not create a right, but rather only recognized a right that already existed, and prohibited the government from infringing upon it.2
In concluding his opinion, Justice Scalia wrote these words: “[W]e hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense” (p. 64).

Reading Justice Scalia’s majority opinion was somewhat fascinating, because he painstakingly dissected every word and phrase in the short, Second Amendment to show that his interpretation was correct. It is interesting to see how the Court’s three opinions took 154 pages to dissect and analyze the 27-word, one-sentence amendment. And it is disconcerting to see how so many points in Justice Scalia’s opinion were disputed and contested by the two dissenting opinions. The dissenters impressed me as being strained and illogical and as denying important historical facts pertaining to the original purpose and meaning of the right to bear arms, as memorialized in the Second Amendment.

It is my judgment that the Heller case will be one of the most important cases in this nation for the next twenty years. I think it will be important to have some in-depth understanding of the case. I will now provide some analysis of and commentary on the dissenting opinions.

II. The Dissenting Opinions

A. Justice Stevens’ Dissent. To start with, consider what the four Liberal Justices stated as their fundamental opinion. They said this: “Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution” (p. 2). It is chilling to me to think that four of the current Justices of the Supreme Court hold this opinion.

The heart of Heller is whether the right to bear arms is an individual right OR whether it is merely a privilege to participate in a militia at the pleasure of the state. The Court (the majority) held it to be an individual right. After all, the Second Amendment says it is a “right.” But the dissenters said that the Amendment does not mean that. The two dissents (by Justices Stevens and Breyer) go on to employ their considerable intellectual and legal skills to argue that the Second Amendment does not mean what it says. They say that because the “right to bear arms” is connected to the need for a militia, that therefore this cannot be an individual right. (Justice Stevens says it is a “right” and a “duty” [p. 16].) But the end result of Justice Stevens’ opinion is that absent a militia there really is no “right.” This leaves nothing but an obsolete “duty” in the Second Amendment. The dissenting Justices never do answer the question of why our Founders called it a “right” if it really isn’t a “right.” Somehow they confuse “duty” with “right”—that is they say that the Second Amendment says that because militias are so important, therefore citizens can have certain arms, but only for use in the militia. This is a ridiculous interpretation. That’s not what the Founders meant, and that is not what the Founders wrote. Even if militias are obsolete, the Amendment continues to have a meaning in that if individuals should not have operable arms for their self defense, then it would be impossible to have militias.

Justice Stevens at one point did acknowl-edge the point that the Second Amendment did not create the right to bear arms (Stevens, J., Dissent, pp. 17 & 38), but he did not seem to appreciate what he acknowledged. Let me briefly explain what Justice Stevens seemed to miss: The technical wording of the Second Amendment does not create any right, but rather it states that the government shall not “infringe” on “the right of the people to keep and bear arms.”

If you know much about James Madison (who drafted the Second Amendment), you know that he felt there was no need for a bill of rights because these rights already existed, and that there was no need to make a partial list of existing rights. In fact, he felt this could have undesirable consequences, if the partial listing of rights were used to later deny that some rights did not exist because they were not enumerated. (The Ninth Amendment was included to avoid this problem.) But, returning to the Second Amendment, Madison’s language again does not create any new right, but rather only restricts the government from infringing upon an existing right.

Well, having said this, what if the minority was right, and the Second Amendment only pertains to bearing arms as may be needed in the militia. If so, then, there is yet an individual right to bear arms that is not referenced in the Second Amendment. The Court never really discusses this issue because (a) the Liberal Justices don’t want to consider those implications; and (b) the majority interpret the Second Amendment to cover the right of individuals to defend themselves with guns, and therefore there was no need to go there.

1. “A Well Regulated Militia . . . .” Justice Stevens spends virtually all of his dissenting opinion to attempt to prove that whatever “right” is mentioned in the Second Amendment is entirely contingent upon and subject to the government’s use of militias. Justice Stevens made numerous strained arguments in his effort. Here are a few of them.
a. He argues that “bear arms” has reference only to using arms in the military (pp. 11 & 14). However, even some of the citations he includes in his opinion refute this unreasonable interpretation.
b. He says that because the Amendment did not include the words “a personal right to use arms in self defense” that therefore the Amendment could not have included such a meaning. This is a ridiculous argument. This is precisely the type of reasoning that James Madison was concerned about—that some would deny the existence of rights because a right may not have been specifically articulated. And while we’re on the issue—the failure to mention something does not mean that that thing does not exist. Yet that is the very argument that Justice Stevens makes. To have added the words “for self defense” would have been superfluous. The wording that was used plainly implies the use of arms for self-defense—otherwise the references to participation in militia actions would have made no sense.
c. Justice Stevens argues that the words “the people” could not possibly mean in the Second Amendment what it means in First and Fourth Amendments. He asserts that in the First and Fourth Amendments the people means all people, but that “the people” referenced in the Second Amendment is subject to considerable limitation. (For example felons and insane people can be barred from possessing arms.) Therefore, Justice Stevens makes the argument that the Second Amendment could not possibly confer a right on all “the people.” Frankly, this is pathetic reasoning.

2. Does the prefatory clause restrict the meaning of the operative clause? We now get to the main argument—does the prefatory clause (or preamble) restrict the meaning of the operative clause that follows? The obvious answer is “not necessarily.” Yet the four Liberal Justices insisted that the prefatory clause limits the operative clause (p. 8). This is blatantly false. Yet, not only do they refuse to acknowledge the error of their thinking, but they accuse the majority of being illogical.

3. The Miller case. Finally, let’s look at the case of United States v. Miller, 307 U.S. 174 (1939), where the Supreme Court addressed the issue of whether a person had a Second Amendment right to possess a sawed-off shotgun. In this cased the Supreme Court upheld a statute that outlawed the possession of a sawed-off shotgun (less than 18” in length). This case established that the right to bear arms is not absolute, and that some weapons can be prohibited. The Supreme Court in Miller stated that there was no evidence that a sawed-off shotgun would have any use in a militia, and therefore the law banning them was upheld.

The dissenting Justices in Heller argue that the Miller case establishes that the prefatory clause does indeed control all the rest of the Amendment, and that whatever “right” does exist is subject to the government’s power to regulate a militia. The majority, however, did not read Miller that way; they acknowledge that not all “arms” are covered by the amendment (machine guns, bazookas and hand grenades could also be prohibited), but the majority did not find anything in Miller that infringed upon the fundamental meaning of the Second Amendment to include an individual’s right to bear arms to protect one’s hearth and home.

B. Justice Breyer’s Dissent. Justice Breyer also wrote a dissent, but his dissent is of lesser importance in my view. He argues that even if the Second Amendment included a personal right to use arms in self-defense, that the government could still impose reasonable limitations and regulations for the safety of society. He then concluded, that the District of Columbia did in fact have a reasonable basis to prohibit the use of handguns. (All four Liberal Justices joined in Justice Breyer’s dissent as well as in that of Justice Stevens.)

C. Stare Decisis. Although the liberal Justices all but abandoned stare decisis in reaching their opinion in 2003 in Lawrence v. Texas,3 they nevertheless accuse the majority in Heller of doing just what they have been doing—lightly throwing aside Court precedents without adequate justification. This accusation by senior Liberal Justice Stevens (p. 4 of his Dissent), would be valid only if the majority interpreted the Second Amendment as he does. But they do not, and his criticism that the majority has not been faithful to stare decisis is without merit. But what makes this accusation by Stevens infuriating is that fact that Stevens and the other three liberals are the ones who have blatantly discarded stare decisis in Lawrence v. Texas and in McConnell v. FEC (campaign finance reform case).4

D. Judicial Activism. The same can be said for judicial activism. Justice Stevens concludes his 46-page dissent by accusing the majority of failing to exercise “judicial restraint.” This criticism is baseless—it is the liberal four who are attempting to legislate from the bench in Heller, just as they did in Boumediene, Lawrence and McConnell. And it is irritating to see them give lip service to the principal of judicial restraint all the while they themselves routinely ignore the principle because it regularly gets in the way of their philosophical agendas.

III. Summary

The Heller case is a critical case for Americans to understand because it high-lights the internal philosophical battle that is going on both in the Supreme Court and throughout the nation. On the most obvious level, this case is about whether individual Americans have the right to possess arms to defend themselves in their homes. But on a deeper level, it is also about whether individual rights are to be superseded by governmental control. And on this deeper level, the issue is whether we the people will turn our individual rights over to the government, and whether it is us or the government who know and decide what is best for us. As for me, I neither want nor need the government to take over my life.

Boumediene v. Bush, 553 U.S. (2008)

On June l2, 2008, the Supreme Court ruled that alien enemy combatants1 detained abroad by our military forces in the course of an on-going war have a constitutional right to habeas corpus relief. Never before has the Constitution given this right to aliens abroad.

This (5-4) ruling is very important and will have far-reaching impact for years to come. Democrat Presidential candidate Barack Obama praised the ruling, while Republican Presidential candidate John McCain sharply criticized it.

On some levels, the ruling was relatively simple—the Court wanted to extend additional rights to foreign enemy combatant detainees. But on close examination, there were several complex issues involved. While few people will read the decision, this will not deter them from offering their opinions on the merits or flaws of the ruling. I encourage all citizens to read it and to get a thorough understanding of what the Court did in this case. This case is one of the most egregious examples you will find of judicial activism, lack of judicial restraint, and judicial pre-emption of foreign policy power and national defense power from the Executive and Legislative branches of the government. The implications of this decision are extensive and profound.

It is difficult to distill in a few words a concise summary of what happened in this case. The Majority opinion (authored by Justice Anthony Kennedy) took 70 pages. The dissent of Chief Justice John Roberts took 28 pages, and the dissent of Justice

Antonin Scalia took 25. When you add in Justice Souter’s 3-page concurring opinion—the total pages reach 126. But the reading of this opinion is a must for all patriots.

By the time you get to page 70 in Justice Kennedy’s majority opinion, you may be mesmerized or persuaded by his reasoning. The majority feels the pain of the enemy combatants at Guantanamo Bay, who for six years (some of them) have remained detained after they were captured in foreign lands fighting against our troops. To some, the length of this detention is intolerable. To some, the criticism that some international peoples level at the U.S. for maintaining the Guantanamo detention facility is more than they can stand. Five of the Supreme Court Justices appear to be in this group. Their impatience and disapproval of the nation’s operations in Guantanamo Bay has led them to hastily and abruptly take actions that have undermined over 200 years of constitutional precedence to attempt to appease enemies of America who will never be appeased because their hatred for America is unreasonable and intractable.

I. Background

Previous to the Boumediene ruling, alien enemy combatants had no rights to habeas corpus protection in U.S. courts if they were confined abroad in places where the U. S. was not sovereign. The case of Johnson v. Eisentrager, 339 U.S. 763, (1950) specifically held this. (See, e.g., Scalia, J., dissenting, p. 10.) The Bush administration properly relied on this precedent, as it detained captive, alien enemy combatants at Guantanamo Bay. But this year’s ruling in Boumediene abandoned stare decisis and overturned Eisentrager (1950) and effectively overturned Hamdi v. Rumsfeld, 542 U.S. 507 (2004) for no compelling reasons. A close examination of the Boumediene ruling will show that it will not give these enemy combatants any significant additional rights, and that the Boumediene holding will serve only as a rebuke of the Bush administration by the Court, when the Bush administration had in good faith relied on Supreme Court precedents. Consequently, all that this case accomplished is to diminish the power of the Executive Branch and to enlarge the power of the Judicial Branch.

II. Problems with Boumediene

Here is a list of some of the major problems in Boumediene v. Bush:
l. The Supreme Court, for the first time, confers on non-citizen, alien enemy combatants the right to seek and obtain the protections of a writ of habeas corpus in U. S. Courts.
2. This ruling by the Supreme Court effectively overturns the 1950 case of Johnson v. Eisentrager, 339 U.S. 763. Until now, there was no question but that alien enemy combatants at the Guantanamo Bay facility would not have the right to access to
U. S. courts through the filing of writs of habeas corpus. But the majority decided to interpret Eisentrager differently—they said that since the U.S. has effective control over Guantanamo Bay, that therefore the habeas writ should be made available. The Majority denies that they overturned Eisentrager, but they offered only obfuscation and linguistic contortions rather than sound reasoning in support of their conclusion. The majority’s effort to reconcile its ruling in Boumediene with its ruling in Eisentrager is a total failure—and will convince only those whose analysis processes do not insist upon facts and sound reasoning.
3. This ruling by the Supreme Court also effectively overturns major parts of the recent, 2004, case of Hamdi v. Rumsfeld, in which case the Supreme Court recommended the precise procedures and practices that Congress and the President then enacted to ensure that the detention of alien enemy combatants satisfies all constitutional requirements. In that regard, Chief Justice Roberts wrote this:
The plurality in Hamdi v. Rumsfeld, 542 U.S. 507, 533 (2004), explained that the Constitution guaranteed an American citizen challenging his detention as an enemy combatant the right to “notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker.

Supreme Court Delivers Five, Important 5-4 Rulings—The Roles Played by Justices Roberts and Alito Are Key

On Thursday, June 28^th, the Supreme Court ended its term, by issuing several important rulings, five of which were extremely important, 5-4 rulings, in which Chief Justice Roberts and Justice Alito combined with Justices Scalia, Kennedy and Thomas to bring narrow victories over the four more liberal Justices, Stevens, Souter, Ginsberg and Breyer. A review of these five cases will manifest their importance. Conservatives will applaud President George Bush for two excellent appointees; liberals will be unhappy. But whatever one’s political persuasion may be, an understanding of these five rulings is important.

The summaries that follow are admittedly laced with this writer’s opinions. But there is nothing wrong with that. This is a private picnic event, and these statements do not necessarily represent the opinions of either my church or my city or of Jim & Sarah Olson. They are the considered thoughts of one who has followed the Supreme Court with great interest for many years. I hope my comments can help all of us to better understand the state of our Constitution.

Below are the five cases.

Parents Involved in Community Schools v. Seattle School District No. 1

National Association of Home Builders v. Defenders of Wildlife

Morse v. Frederick

Hein v. Freedom From Religion Foundation, Inc.

FEC vs. Wisconsin Right to Life

On June 28, 2007, the Supreme Court announced it ruling on an affirmative action issue that arose in Seattle, Washington andJefferson County, Kentucky. By a 5-4 vote the Court struck down desegregation plans in both of these school districts because the plans were based purely on racial percentages and were not related to either of the two acceptable justifications for affirmative action, i.e., to remedy past racial injustices or to provide the benefits of a racially diverse student body. The Supreme Court has legitimized these two justifications for affirmative action, and the Court has stated that if a desegregation plan is narrowly tailored to accomplish one of these objectives, then the demands of the Fourteenth Amendment’s Due Process Clause are satisfied. But neither the Washington nor the Kentucky plans even attempted to articulate such a connection with its racial percentage plans.Accordingly, the plans failed to survive the strict scrutiny that the Equal Protection Clause demands of any racially-driven, governmental plan.

This decision once again pitted the five more conservative Justices with the four more liberal Justices. But this ruling is likely to evoke more criticism and commentary than the other rulings announced this week for several reasons. This is primarily so because it pertains to race, and there are a number of outspoken leaders in the nation who do not hesitate to speak out against racism whenever they can, whether or not the particular facts justify such an allegation. The dissenting Justices implicitly called for such criticism in their long and emotional argument against the majority’s opinions. But for all the protestations of the dissenters, Chief Justice Roberts and the majority correctly applied the law, and properly rejected the desegregation plans. If the dissenters’ opinion had been in the majority, this case would have stood for a significant extension and expansion of the types of racially-motivated, affirmative action plans that the Court has chosen to permit under the Equal Protection Clause. The Roberts Court wisely drew a line in the sand and took a stand against further expansion.

It should be pointed out that the Parents Involved opinions are 185 pages in length. Few people will take the time to read them, let alone to understand them. I expect that the discussion of this case will be limited primarily to name-calling and superficial treatment. The Majority will be labeled as “racists” and the dissenters will be hailed as the heroes of the down-trodden.Neither is true. The plain language of the Equal Protection Clause and the clear language of the earlier cases on affirmative action all support the ruling of the Court on this important issue.

The pages of opinions generated by the Justices in addressing this case was multiplied because of the acerbic dissent of Justice Breyer, who spent numerous pages giving his account of historical events and stating his sociological arguments for upholding the Seattle and Jefferson County plans. Justice Thomas’ concurring opinion devoted 36 pages to respond to Justice Breyer’s argument. The Chief Justice’s (the Majority) opinion, devoted thirteen pages to respond. But the Majority was not side-tracked; they got it right.

On June 25, 2007, the Supreme Court, in another 5-4 decision, resolved a procedural conflict between to federal agencies pertaining to the protection of endangered species, the result of which is to lessen the protection given to endangered species.

The legal question around which this case centered is whether the Environmental Protection Agency (EPA)is required to consider whether a construction project would jeopardize an endangered species before transferring permitting authority to a state (Arizona). The Supreme Court answered this in the negative; they said that the Clean Water Act of 1972 requires that the EPA transfer permitting responsibility for a project to the applicable state once nine criteria are satisfied. And that is what the EPA did.Thereupon, Defenders of Wildlife filed suit directly in U. S. Court of Appeals for the Ninth Circuit, requesting the court to order the EPA to first insure that a water project would not endanger the cactus ferruginous pygmy-owl and the Pima pineapple cactus. The Ninth Circuit ruled in favor of the petitioners (Defenders of Wildlife). However, the Supreme Court reversed, ruling that the EPA had correctly transferred permitting authority.

Having given this brief description of the case, you might ask, “So what?” What makes this case important? The answer is that this ruling is a setback to those who have sought to place protection of endangered species as a higher priority than the primary purposes of other federal agencies and programs. The four dissenting Justices (Stevens, Souter, Ginsberg and Breyer) argued that the majority's interpretation of the Clean Water Act reverses a long-standing mandate that Congress must make protection of endangered species a priority over the “primary missions” of other federal agencies.

(J. Stevens, dissent, p. 2). But the opinion of Justice Alito (joined by Chief Justice Roberts and Justices Scalia, Kennedy and Thomas) disagrees.

This case was necessary because of a difference in the Circuit Courts in addressing this procedural issue. It is not clear to me that the decision will necessarily be more or less protective of endangered species. I believe it will relegate to states more of the enforcement of endangered species protection; perhaps this will yield some inconsistent interpretations of law. But I favor this deference to the States; it should mean that decisions regarding the protection of endangered species will be made by the people closest to the situation, and therefore perhaps more sensitive the the affects and influences of such issues. It certainly divests the federal government of some control over protection of endangered species.

On June 25, 2007, the Supreme Court ruled 5-4 in Hein v. Freedom From Religion Foundation, Inc., 551 U.S. ____ (2007) that being a taxpayer is not enough to give an individual standing to bring a suit to challenge the Executive Branch's using faith-based programs for delivering social services as a violation of the First Amendment's Establishment Clause.

This ruling is important because it blocks law suits that challenges the government's accommodation of religion, including acknowledging religion and on occasion even working with religion in addressing social needs. The Hein ruling means that anti-religion zealots have no right to bring a law suit to challenge the work of the Executive Branch for involvement with religious organizations merely because this may hurt their feelings. The Hein ruling dictates that in order to have standing to challenge such Executive Branch action, the complaining party must show that it has suffered “injury in fact,” not just “psychic injury.”

The name of the complaining party indicates exactly what this law suit was all about. The complainant wants to eradicate all vestiges of religion from government. They are upset with the nation's long, constitutional tradition of accommodation of religion; they are madder still at the national motto, “In God We Trust” and at the statement in the pledge of allegiance that we are a nation “under God.” They cringe every time a President says, “God bless America.” Their stated goal is to change all of this. They wish to convert the meaning of the Establishment Clause of the First Amendment from a shield to a sword; they wish to change freedom of religion to freedom from religion.

The Hein ruling is an important defeat for the anti-religionists.

However, a review of the Hein ruling is interesting and important for some other reasons, too. Like the Court's ruling on the same day in FEC v. Wisconsin Right to Life, a majority of five conservative justices came to the same conclusion, but based upon different rationales. In fact, in both of these cases, the rationales of Justices Scalia and Thomas were in some respects closer to that of the dissenting Justices (Stevens, Souter, Ginsberg and Breyer), in that these six felt that the distinctions made by Chief Justice Roberts and Justice Alito were not logically sustainable—that there was no basis for limiting the application of Flast to Congressional acts but not to Executive acts. But in both cases, Justices Scalia and Thomas voted with the Chief Justice and Justice Alito because the former felt that the Court should overturn an erroneously decided case rather than to try to carve out an exception to the cases. I find this to be intellectually intriguing.

In Hein, discussion centers on the case of Flast v. Cohen, 392 U.S. 83 (1968), in which the Supreme Court ruled that a mere taxpayer had standing to challenge in court the government's using funds allocated by Congress under the Elementary and Secondary Education Act of 1965 to support parochial schools. (J. Scalia's concurring opinion, p. 5.) But the Court in Hein distinguished Flast by pointing out that Flast dealt with a Congressional act whereas the expenditure in Hein was a discretionary expenditure of the Executive Branch. Justices Scalia and Thomas agreed with the Chief Justice and Justices Kennedy and Alito as to the result—they just felt that Flast was wrong in the first place, and that it should be overturned.

I am with Justices Scalia and Thomas on this case. The “psychic injury” test for standing is bad policy. The Flast case continues to recognize and endorse this ephemeral standard. To illustrate the application of the “psychic injury” look at some litigation that took place in my town, Frederick, Maryland just a few years ago.An eighteen-year-old student filed suit to remove a Ten Commandments monument from the City's war veterans' memorial park. In order for this young man to state a valid cause of action he first had to declare that be seeing the Ten Commandments monument in the park that this caused him emotional pain and grief. For if the young man would not say that the monument bothered him, then he would not be able to challenge the constitutionality of the City's harboring of the Ten Commandments monument. The young plaintiff contacted the ACLU to get the legal direction he needed, then he claimed that the monument disturbed him, and then—because of the Flast case—he got standing to suit the City in court.

The Flast case has served to open the flood gates to a host of litigation aimed at making people feel good, rather than addressing claims for actual injuries in fact. The nation has become obsessed with addressing touchy, feely mental and emotional matters. The penchant for hate crime laws is another manifestation of this same trend. It is not enough to punish a criminal for his wrongful acts of violence, but we have enacted laws to give increased punishment if we can prove that the criminal harbored certain, specified bad intents at the time. This exercise is unnecessary; it is the product of legislators have too much spare time on their hands; it costs more tax monies to administer; and it causes all parties more money to implement.

Justices Scalia and Thomas were right to call for Flast to be overturned. They were unsuccessful in this, but at least the conservative block was successful in limiting the bad effects of Flast.