Policy Spotlight: Redistricting

The political gerrymandering of congressional districts has been in the news in a big way recently, as the Supreme Court recently agreed to hear arguments in a case concerning whether Wisconsin’s legislative map unconstitutionally deprives Democratic voters of equal representation, dividing them into various majority-Republican districts and weakening their clout in federal elections.

National Democrats are understandably hoping that a Supreme Court decision holding that Democratic voters have been disenfranchised will lead to Republican-drawn congressional maps across the country being overturned and redrawn. If that were to happen in time for the 2018 elections, Democrats could then become more competitive in congressional races across the country, increasing their chances of retaking a majority in the House without having to do the heavy lifting of campaigning for votes or convincing the voters to support their policy goals.

But some state Democrats in liberal strongholds are hoping for a different outcome. Nationwide, the vast majority of state legislatures are controlled by Republicans, meaning that arguments against gerrymandering are more likely to affect maps favorable to the GOP. But in states such as Maryland, the reverse is true, with blatantly partisan maps serving to shut out Republican candidates for congressional seats. If you thought the Wisconsin district map was gerrymandered, take a look at the Maryland map adopted by state Democrats.

It is obvious, and should be expected, that partisan state legislatures will attempt to draw maps favorable to one political party over the other. Neither party is inherently more honest on the subject, which is why an alternative to the partisan maps must be found and adopted across the country. A few states use independent commissions to redraw congressional boundaries after each census, but since both parties are reluctant to give up one of the great benefits of controlling state legislatures, the practice is far from widespread. Another possibility would be an automatic referendum on proposed maps, which would in theory encourage legislatures to keep the influence of partisan politics to a minimum.

Whatever the answer, it is clear that something must change in how we draw congressional boundaries. What should be a nonpartisan and fairly technical task has become increasingly infused with the worst of party politics, and both sides bear some responsibility.

Policy Spotlight: Eminent Domain

As one of a number of important issues that nevertheless get little of the attention they deserve, the subject of eminent domain has long been one of the most neglected subjects in political debates. Yet for all of its relative obscurity, the issue is one which could most directly affect the average voter, as it governs under what circumstances the government is able to seize private property for public use (with "just compensation" to the owner), a power necessary to some degree for the smooth functioning of any government, but one that could be easily abused.

The most recent major Supreme Court decision regarding eminent domain was handed down in the 2005 Kelo v. City of New London decision, which dealt with the federal power of eminent domain (governed under the Takings Clause of the Fifth Amendment). A key distinction and argument over the precise meaning of the Takings Clause gained prominence through the Kelo decision: what constitutes "public use"? A valid exercise of eminent domain has always been understood to encompass infrastructure projects such as highways and other public works, but whether the power could constitutionally be used by the government to take property which would then be turned over to private developers is another question entirely. Does a shopping mall—or, as was at issue in Kelo, a pharmaceutical research facility—satisfy the definition of "public use", since it would provide goods and services to the public and create jobs; or would it not, since the property would still be privately owned, use of a shopping mall is much more voluntary than of a highway, and unlike highways, a mall is sustained entirely through the private transactions of voluntary customers?

In the Kelo decision, the debate over what truly constitutes public use or property split into rival liberal and conservative opinions. Four conservative justices—Rehnquist, Scalia, Thomas, and Sandra Day O'Connor, who had authored a previous liberal eminent domain opinion for the Court—argued that it was unlawful for the government to exercise the power of eminent domain only to then turn the property over for private use. Meanwhile, Anthony Kennedy joined with the Court's four liberals in the majority opinion, authored by John Paul Stevens, holding such an exercise of eminent domain to be constitutional.

Since 2005, the Court has heard only one case of any significance regarding the Takings Clause, a decision last year which dealt with what could properly be considered "just compensation", but since the Kelo decision, the primary argument in conservative legal circles has continued to center around the proper definition of "public use". A major future conservative victory on the Court, which would nonetheless probably go unnoticed by the vast majority of the public, would be to one day overturn the Kelo decision—limiting governmental power to more closely mirror the precise wording and intent of the Fifth Amendment. It would not be an exaggeration to argue that such a victory would be overshadowed only by the overturning of Roe v. Wade in substance and long-term impact, and as with that decision, opposition to Kelo should be an aspect of every potential Supreme Court nominee's overarching judicial philosophy.

Who Should Be Trump's Next Supreme Court Nominee?

Yesterday I offered some speculation about future vacancies on the Supreme Court, and the way Trump’s nominations to fill those vacancies could impact the ideological balance of the Court. Today, I wanted to briefly discuss the specific kind of person Trump should name to the Court.

The obvious example for Trump to follow in choosing a future nominee is now-Justice Neil Gorsuch. The Gorsuch nomination was universally well-received by the Right on its announcement, and Gorsuch satisfied all three of the criteria vital to a successful Trump Supreme Court pick—ideology, age, and placement on the Trump campaign’s list of possible nominees. A potential second pick should fit those three criteria just as well.

The most important qualification will obviously be that of judicial philosophy, and the vetting process should actively seek out every available piece of evidence to determine how each potential nominee feels about past major cases, as well as issues such as federalism, separation of powers, and an expansive versus originalist view of the Constitution. This attention to detail is particularly important in light of the recent history of Republican judicial nominees, and their varying degrees of adherence to the original meaning and text of the Constitution. For every Clarence Thomas, Samuel Alito, and Neil Gorsuch nominated to the Court, there has been an Anthony Kennedy, David Souter, or John Roberts.

The age factor is perhaps the most underappreciated of the many that go into determining who the next Supreme Court justice might be, but it is also one of the most important, and Trump should nominate someone who is in their 50's or even 40's, and could be expected to serve on the Court for many years to come. Again, Gorsuch should be the model here—at 49, he is by far the youngest Justice currently on the Court, and absent any unforeseen circumstances should still be capable of deciding cases twenty or even thirty years from now.

Finally, Trump should choose a nominee from the list of possible Supreme Court appointments he released during the campaign. That list provided a guarantee that the nominee would be a reliable conservative, and was a key campaign promise. Though it was understood at the time to primarily apply to the vacancy created by the death of Antonin Scalia, Trump also said that he would use the list to choose future nominees as well, should further vacancies arise during his time in office.  The list is replete with individuals who would make fantastic Supreme Court justices, and it would be a mistake for Trump to begin the process of selecting a second nominee by looking anywhere else.

Gaming Out The Future of Supreme Court Vacancies

Since Ronald Reagan, every President of the United States has seen at least two successful nominations to the Supreme Court. Reagan had three; both Bushes, Bill Clinton, and Barack Obama have each filled two vacancies. Donald Trump, only one hundred days into his first term in office, has already had one successful nomination, the only time in recent history that has occurred.

And Trump could soon get another chance to leave his mark on the Supreme Court. Rumors are swirling that Anthony Kennedy, the moderate swing vote on the Court and eighty years old, could retire this summer. If he does, and Trump has the opportunity to make a second nomination, it will be an historic event for a president to fill two seats on the Court so early in his term.

As I’ve said before, this is when the real battle for the future of the Supreme Court will take place. Gorsuch’s nomination merely replaced one conservative—Antonin Scalia—with another. But if Trump replaces Kennedy with another name from his list of potential justices, any of whom would be a solid conservative pick, the current balance of power would shift definitively toward the Right.

And it might not end there. Ruth Bader Ginsburg, the leader of the current Court’s liberal wing, is 84 years old and has suffered several health issues in recent years, including cancer. She would certainly like to delay retirement until the next liberal president is elected, whether in four or eight years, but if any justice is likely to be forced into retirement due to worsening health problems, it would be her. Stephen Breyer, another veteran liberal, is currently 78 years old, and may well decide to leave the Court before another Democrat is elected, particularly was Trump to win reelection in 2020.

In contrast, with Scalia’s death, Clarence Thomas is now the oldest conservative member of the Court, who at 68 is still fairly young by judicial standards.

With his first Supreme Court nomination, Trump has all but guaranteed the current delicate balance of power between conservatives and liberals. With his next pick, should Kennedy indeed choose retire within the next year or two, Trump has the opportunity to give the Court its first fully conservative majority since the early 1930’s. And, should more vacancies arise after that, he could well solidify a conservative supermajority on the Court that would last for decades to come.

Policy Spotlight: Term Limits

“Term limits are the first step towards reforming Capitol Hill. Eliminating the political elite and infusing Washington with new blood will restore the citizen legislature that our Founding Fathers envisioned. The American people have called for increased accountability and we must deliver.”

—Representative Ron DeSantis (R-FL), 1/3/17, on the introduction of the Cruz-DeSantis Term Limits Constitutional Amendment in Congress

The idea of term limits in national American politics has a long and complicated history. The Framers of the Constitution, after much debate, eventually decided not to include term limits for members of Congress and the President, preferring instead regular elections and self-imposed limits by citizen legislators. Following Franklin Roosevelt’s unprecedented four terms as President, Congress and the states approved the 22^nd Amendment to the Constitution, limiting the President to two terms.

A groundswell of support for Congressional term limits in the 1980’s and 1990’s led to several states attempting to impose term limits on their own federal lawmakers, which were in turn struck down by the Supreme Court as unconstitutional in U.S. Term Limits, Inc. v. Thornton. The ruling held that only a constitutional amendment could require term limits, a precedent set by the 22^nd Amendment. In response, Congress voted on, and narrowly failed to approve, an amendment mandating term limits. Since then, the public’s interest in term limits has surged several times, but in general the status quo has remained in place.

This is unfortunate. Opponents of term limits do their best to argue the merits of an unpopular opinion, and some of those arguments make sense—the need, for instance, of legislators to accumulate experience and seniority if they are to be truly successful at aiding their constituents. Experience is always a useful thing to have, to some degree. But its importance can also be overstated, which is what generally happens when making the case against term limits. With an able staff, a new senator or congressman should be able to learn the ropes and start making a difference in short order—if the institutional requirement of seniority, perpetuated by politicians who have been in office for decades, don’t stand in his way, that is.

But perhaps the most important factor when discussing term limits is the culture of power, money, and influence that pervades Washington. Even the most well-intentioned candidates for office can easily be seduced into abandoning their principles by the temptations that lurk in every back corridor in the capital. The best way of ensuring those candidates don’t lose their way is by putting them on notice, from before they even arrive in Washington, that their days facing temptation are numbered.

The Framers, after much debate, rejected mandating term limits, believing that the best term limit was the will of the people, exercised through competitive elections. But in this they may have been mistaken, by underestimating the way in which the rise of major political parties would make so many races uncompetitive—and by how long tenures in office would make incumbents less and less likely to be unseated by their constituents. The amendment process was built into the Constitution because the Framers knew they were not infallible. It is a power that should be used judiciously, but in the case of Congressional term limits, one vital to restoring accountability and good government in the federal government.

How Much Will Neil Gorsuch Really Change The Supreme Court?

From a conservative point of view, the nomination of Neil Gorsuch to the Supreme Court was a huge deal, because of both his solid originalist record on the 10^th Circuit bench and the seat on the high court that he was destined to fill. For conservatives to preserve the center-right status quo that has more or less endured on the Court since the early 1990’s, it was vital that someone at least as committed to the Constitution as Antonin Scalia be nominated and confirmed to the vacancy.

But for liberals, the stakes were much lower—despite the fact that Democratic senators were howling left and right that if Gorsuch was confirmed, it would mean the end of the republic as we know it. Liberals have survived the past two decades with a Court nearly identical, ideologically, to the one that will soon take shape, once Gorsuch begins hearing cases. They’ve even gotten a few wins—the survival of Obamacare, the nationwide legalization of gay marriage—out of the equation.

Which is why I continue to struggle to understand why Chuck Schumer and the rest of the Democratic caucus in the Senate felt it was worth sacrificing the filibuster for high court nominees in a fruitless effort to prevent Gorsuch’s elevation. Why make the replacement of one conservative justice with another the hill to die on, rather than waiting and saving ammunition for the next vacancy, when Democrats could well be confronted with the idea of Donald Trump replacing an outspoken liberal with a conservative?

Others, many others, have asked the same question since the announcement of Gorsuch’s nomination. The likeliest answer seems to be that the Democratic base was exerting so much pressure on members of Congress to oppose Trump and his nominees at every step, that Democrats were cowed into doing what in their hearts they knew was strategically stupid. Sure, if Democrats had saved their fire until Trump’s next Court pick, the same end result would probably have occurred—the filibuster would have been gutted, and the nominee would have been confirmed. But in that case, liberals would have had more public credibility from keeping their opposition to Gorsuch low-key, and their hysterical opposition would have been more believable—translating to greater public support, as opposed to now, when that opposition is easier to see as more of a reflexive rejection to anything Trump-related, no matter the circumstances.

Gorsuch and Scalia are different people, no doubt about it. There is evidence to suggest that on some issues, Gorsuch may actually be a little to the right of Scalia. And the former’s relative youth ensures that, absent sudden circumstance, he could well be deciding cases for decades to come. But overall, Democrats’ decision to go all-in on opposition to Gorsuch, rather than saving ammunition for later, was pretty shortsighted of them.

NEW: Gorsuch Is Confirmed

Moments ago, the Senate officially confirmed Judge Neil Gorsuch to be the newest Associate Justice of the U.S. Supreme Court.

Thank God. Thank God that this process is finally over; it was actually a rather quick confirmation, from the first nomination announcement to final Senate vote, but with all the bitter partisan struggles it felt like forever. I was getting tired of reading and writing about it, day after day, to be honest. But the process is finally over.

And thank God that Neil Gorsuch, not Merrick Garland or whomever Hillary Clinton would have nominated, is the one about to fill Antonin Scalia’s seat. Justice Scalia was a giant of constitutional law, and was a major force in returning the Supreme Court to a limited government, originalist jurisprudence. Not many people could be expected to fill those shoes. Now-Associate Justice Gorsuch is one of the very few who can.

Congratulations, Justice Gorsuch. Now don’t let us down.

Today Is A Big Day

Minutes ago, the Senate vote on cloture for the nomination of Neil Gorsuch to the Supreme Court fell short of the sixty votes necessary to proceed to a final vote. This means that Democrats have no launched the first successful filibuster of a Supreme Court nominee in fifty years, and the first ever solely along party lines.

As I wrote yesterday, over the past week it became increasingly clear that this was going to happen. Which means that it is, as they say, time to go nuclear. One way or another, Mitch McConnell has to make sure that Gorsuch is confirmed. It is something necessary for the future of the country, the Constitution, and, needless to say, failing to ensure confirmation would be equivalent to McConnell signing his own political death warrant.

Many Republicans have expressed dismay over using the nuclear option. I sympathize. It is not an ideal situation, and it should not have come to this. The filibuster is a valuable tool for the minority party, and the GOP still remembers what it was like to be in the Senate minority. It is a certainty that at some point, they will return to that position, and when that day comes they will wish for a tool like the filibuster. But the confirmation of Neil Gorsuch is too important to leave any option, even the nuclear option, on the table.

The actions taken today will shape the future of the Senate as a deliberative body, and the composition of the Supreme Court for decades to come.

Time To Go Nuclear

Democrats now look likely to attempt a filibuster of Neil Gorsuch’s nomination to the Supreme Court. Based on public statements, at least forty-one Democratic senators now say they will vote against the cloture motion, which would allow for a final vote.

I have to say, I’m surprised. Gorsuch won confirmation to the Tenth Circuit unanimously only a decade ago. Many of the Democrats now decrying him as a dangerous and unqualified ideologue were already serving in the Senate then, including Minority Leader Chuck Schumer. It was to be expected that Gorsuch’s nomination to the Supreme Court would be far from unanimous, but I didn’t expect that quite so many Democrats would be so eager to be seen as partisan hacks.

But either way, Democrats have made their choice, and now they must deal with the consequences. Neil Gorsuch is an eminently qualified judge who will make a superb justice. Eliminating the filibuster is not the ideal solution, but it seems to be the only one left.  Apparently, the current Democratic caucus will only accept a judge who has first sworn allegiance to Planned Parenthood and taken an oath vowing to uphold Roe v. Wade at any cost. Anyone else is “outside the mainstream”.

Republicans may well one day regret eliminating the filibuster for Supreme Court nominees. But putting Neil Gorsuch on the Supreme Court is a worthy enough reward. Time to go nuclear.

Democrats Need To Confirm Neil Gorsuch

As of this writing, just two Senate Democrats—Joe Manchin of West Virginia and Heidi Heitkamp of South Dakota—have said that they will vote to confirm Neil Gorsuch to the Supreme Court. Over thirty other members of the caucus, including the Minority Leader, have indicated their opposition to Gorsuch, and the remainder (about a dozen) remain uncommitted, at least publicly.

For comparison’s sake, five Republicans ultimately voted to confirm Elena Kagan, the most recent Democratic nominee to the Supreme Court, in 2010. The previous year, nine Republicans voted to confirm Sonia Sotomayor. As both votes occurred when Democrats still held close to sixty seats in the Senate, neither nomination was ever in any serious jeopardy.

The days when strongly conservative or liberal nominees to the Supreme Court, such as Antonin Scalia or Ruth Bader Ginsburg, could be confirmed with near unanimity are clearly over. But the fact remains that there is an empty seat on the Supreme Court which must be filled, and Democrats are not likely to see a more qualified, respected, or thoughtful judge than Neil Gorsuch be nominated to fill the vacancy. The Democratic caucus, egged on by liberal activists, is obviously betting that a general policy of resistance will have a big payoff in 2018.

The reason Republicans blocked Merrick Garland’s nomination last year was simple: it was a presidential election year, and whoever won the election should get the opportunity to fill the vacancy. It was an idea built over decades of Senate tradition, by Republicans and Democrats alike. Do those Democrats now blocking Gorsuch, who last year argued so strenuously that there could be no vacancies on the Court, now want Scalia’s seat left vacant until 2020?

Neil Gorsuch is an outstanding nominee, highly qualified, has no skeletons in his closet, and has proven through both his testimony and written opinions that he serves the law and the Constitution, at the expense of any personal agenda. Democrats can ask for no better from any nominee to the Supreme Court, much less a Republican nominee.

Summarizing The Gorsuch Confirmation Hearings

In a word: Excellent. Or, in four: future Associate Justice Neil Gorsuch.

Gorsuch, as expected, did just about everything right during his confirmation hearings this past week, skillfully parrying the expected Democratic attacks on issues such as campaign finance and abortion (you can read my take on the abortion-related exchanges here). He was always a favorite to be confirmed, absent some shocking gaffe at his confirmation hearings, and with the hearings now past even that remote possibility is dead.

Chuck Schumer and the more liberal members of the Democratic caucus may make noises about filibustering the nomination, thereby requiring sixty votes to confirm, but I wouldn’t be surprised if they lack the votes within the caucus even to sustain a filibuster. There are probably at least 6-8 Democrats, up for reelection next year in vulnerable seats, who would consider voting to confirm—or at least voting to end any potential filibuster. And no Republicans are likely to oppose Gorsuch, either.

All that said, Neil Gorsuch will be on the Supreme Court by June at the latest, and could be confirmed by Easter, providing a big win to both conservatives and the Trump administration.

Don't Be Worried About Gorsuch's Abortion Comments

Abortion has been a hot topic so far in Judge Gorsuch’s confirmation hearing, resulting in several memorable exchanges between the (hopefully) future justice and Judiciary Committee Democrats.

Dianne Feinstein has been the senator most focused on the abortion issue, questioning whether Gorsuch would consider overturning Roe v. Wade, to which Gorsuch replied that he could make no guarantees on how he’d rule in any future case, but that “Once a case is settled, that adds to the determinacy of the law. What was once a hotly-contested issue is no longer a hotly-contested issue. We move forward.”

“[Roe] has been reaffirmed many times, I can say that,” he said later. He also said that if President Trump had asked him to overturn Roe, “I would have walked out the door.”

Some conservatives might be concerned by this, unhappy with any response that doesn’t amount to, “I will definitely push for the abolition of Roe the moment I am confirmed.” But this would be pretty stupid from a political standpoint, and also, as Gorsuch and others (including the late Justice Scalia) have said, not an attribute one should look for in a good judge. Judges should always wait until hearing the facts of a case before making any final decision.

I was also curious what Samuel Alito, an unquestionably fine conservative justice, had to say on abortion during his own confirmation hearing a decade ago: “What I have said about Roe is that if it were -- if the issue were to come before me, if I’m confirmed and I’m on the Supreme Court and the issue comes up, the first step in the analysis for me would be the issue of stare decisis. And that would be very important. If I were to get beyond that, I would approach that question the way I approach every legal issue that I approach as a judge, and that is to approach it with an open mind and to go through the whole judicial process, which is designed, and I believe strongly in it, to achieve good results, to achieve good decision-making.”

And: “Roe v. Wade is an important precedent of the Supreme Court. It was decided in 1973. So it’s been on the books for a long time. It has been challenged on a number of occasions. The Supreme Court has reaffirmed the decision; sometimes on the merits; sometimes—in Casey—based on stare decisis.”

Those responses are, substantively, little different from what Gorsuch has offered on the same issue over the last couple days. Of course, no one can predict with 100% accuracy how any given judicial nominee will rule once on the bench—see Souter, David, and Roberts, John. Confirmation hearings have become more about partisan maneuverings and avoiding verbal traps laid by the opposing side than a window into judicial thought. But Gorsuch’s statements over the last few days, on abortion and other issues, is fully in line with those of past conservative nominees.

Affirmative Action: Government-Approved Discrimination

There has been abundant research, over the several decades since affirmative action was first widely instituted, to show that it demonstrably does nothing, over the long term, to improve the fortunes of individual members of minority groups. One of the more controversial arguments states that artificially elevating individuals to a level they are not sufficiently prepared to excel at does little to improve those individuals' lives.

Justice Clarence Thomas, only the second black justice in the history of the Supreme Court, is perhaps one of the strongest and most capable critics of affirmative action. He has many times argued that these programs serve to, in effect, taint the achievements of even the most deserving and qualified members of minority communities.  The programs cheapen their achievements and causing others to wonder whether they had merely been given an inside track to college admittance or job hiring because of their race, doubts that in turn serve to inhibit the very cause of racial integration, and elimination of historical racial preferences as a stigma, that affirmative action was supposed to help achieve.

However, all of the many varied arguments against affirmative action make a key distinction, treating individuals exactly as that—individuals, rather than as members of a homogenous, communal group. The primary arguments in favor of affirmative action, meanwhile—corrective, to make up for a general lack of opportunity in minority communities; compensatory, in order to pay some form of group reparation directly to the black community to make up for a history of slavery and discrimination; and diversity, to facilitate a more representative and inclusive environment, whether in colleges or in the workforce—do exactly the opposite, treating individuals as merely members of a group.

Furthermore, the debate regarding the policy merits of affirmative action avoid the tougher moral and constitutional questions, since affirmative action, by its very nature, treats individuals differently based solely on their race. Throwing to the wind Martin Luther King Jr.'s wish for future generations to be judged “not on the color of their skin but on the content of their character,” as well as the clear text and intent of the modern Constitution as a "color-blind" document, modern affirmative action programs do exactly the opposite.

As Chief Justice Roberts wrote in one of the last affirmative action cases to reach the Supreme Court, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Birthright Citizenship Needs To Go

Under the current interpretation of constitutional law, every individual born within the United States is automatically entitled to full U.S. citizenship. This applies equally to the children of American citizens, legal immigrants, and illegal immigrants. If aliens landed in Montana and had a child, that child would presumably be entitled to birthright citizenship, as well.

This is a profoundly bad policy. More importantly, despite liberal arguments to the contrary, birthright citizenship is nowhere mandated in the Constitution. Formally changing the policy would therefore require nothing more than a simple act of Congress.

Arguments that birthright citizenship is constitutionally mandated can be traced back to a single section of the Fourteenth Amendment: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Sounds pretty straightforward, right? If you’re born here, you’re a citizen.

But it is the qualifying phrase, “and subject to the jurisdiction thereof”, that liberals routinely forget about or ignore outright. Merely being born in American territory, according to the Fourteenth Amendment, is not enough. You must also be in compliance with federal law. Illegal immigrants, by definition, are in the country illegally and are therefore in violation of federal immigration law. Hence, their children are not constitutionally required to receive citizenship upon birth.

This is not to say the current regime of granting citizenship to every child of illegal immigrants is unconstitutional. The Fourteenth Amendment sets a mandatory minimum, as it were, for citizenship. Congress, if it wanted to, could pass a law granting full U.S. citizenship to every person on the planet. But just because something is constitutional does not make it good policy.

Furthermore, the Supreme Court has several times held that birthright citizenship, of the kind currently encoded in federal law, is not constitutionally mandated. In 1884, the Supreme Court held in Elk v. Wilkins that Indians could not claim birthright citizenship as the tribes were considered independent political entities not "subject to the jurisdiction" of the United States, thereby requiring additional passage of the Indian Citizenship Act of 1924. In 1898, the Court held in U.S. v. Wong Kim Ark that a child born to immigrant parents in the United States was automatically conferred citizenship under the 14th Amendment, a fact often cited by modern proponents of birthright citizenship—however, what those proponents fail to mention is that the parents in that case were legal immigrants, “subject to the jurisdiction” of both the United States and California, a fact expressly cited in the Court's opinion.

Birthright citizenship was not discussed again by the Supreme Court until 1982, when Justice William Brennan used a single sentence in an opinion footnote to state his belief that birthright citizenship was constitutionally required.

Birthright citizenship as it is currently defined is bad policy, granting blanket U.S. citizenship privileges to thousands of illegal immigrants who have no respect for American institutions or ideals of liberty and limited government. If Congress wants to solve the problem, the time is now. Enough blaming other branches of government for the current mess.

Religious Liberty in the Twenty-First Century

Eighty-four percent of Americans identify as Christians of one form or another, but you wouldn’t know it from the coverage many Christians receive in the mainstream media, or the often scornful attitude toward traditional Christian beliefs expressed by the previous administration. Opponents of abortion are portrayed as against personal health and women’s choice. Opposition to gay marriage is painted as the spiritual successor to Jim Crow. Catholic nuns are told by the government that they must provide free contraceptive coverage to their employees or be punished. And in some liberal enclaves, local governments are even demanding copies of ministers’ sermons, in order to be analyzed for disagreeable content.

One of the greatest emerging issues the Supreme Court faces today is in the realm of religious liberty. In this area, recent history is mixed. On the one hand, the current Court has shown itself to be a friend of the First Amendment and freedom of expression, and took a dim view of arguments advanced by the Obama administration that elderly nuns should be forced to grant free access to contraceptives. At the same time, in Obergefell v. Hodges the Court sided with liberals in unilaterally declaring a national constitutional right to same-sex marriage, and opened the door to discrimination against a variety of religious groups who believed differently.

All this means that the appointment of judges committed to the full text and meaning of the First Amendment’s guarantee of religious freedom is of preeminent importance. Judge Gorsuch, fortunately, has a record when it comes to such issues. But the chances are high that Trump will get at least one more appointment to the Supreme Court in his first term, and it is vital that more judges like Gorsuch are appointed—no matter the identity of the judge or judges retiring.

I mentioned Christians specifically at the top of this post, because it is their beliefs most frequently under assault today. But the First Amendment applies equally to all beliefs and religions, and does not single any one out for special protection or prosecution. Muslims, Jews, and Sikhs deserve no fewer protections to practice their beliefs openly than do Christians—but no greater protections, either. The courts would do well to remember that fact.

Some Tuesday Wisdom from the Next Supreme Court Justice

National Review Online has just unearthed a 2005 article written for the publication by a lawyer based in Washington, D.C., one Neil Gorsuch. Go and read the whole thing now.

Obviously, the brief portion of the piece where he touches on electoral politics hasn’t aged especially well. Lines such as “Democrats have already failed to win a majority of the popular vote in nine out of the last ten presidential elections,” are more interesting as historical relics than anything else. And, of course, the era of gay marriage being an automatic loser at the ballot box is over, even with the Supreme Court refusing Gorsuch’s invitation and ruling that all such marriages must be recognized by every state.

But all that is beside the point. The article beautifully illustrates the point, as salient now as it was ten years ago, that liberals rely on the courts and extensive litigation at their, and the country’s peril. Judges should defend rights and strike down laws when appropriate, to be sure. That’s part of the job description. But, again I stress, only when appropriate. Which should not be the open invitation that many on the Left seem to think it is.

And though Gorsuch addresses the Left specifically, conservatives would do well to heed his words. Too often, many on the Right see the great successes Democrats have had at enacting their agenda through the courts (such as a national right to gay marriage and abortion) and push too far in the other direction, calling for example, for the Supreme Court to declare abortion to be unconstitutional across the board. There are right and wrong ways of achieving goals, and this would undoubtedly be a very bad position for pro-lifers to support. If the Supreme Court merely overturned Roe v. Wade and returned the matter to the states and voters to decide, there could then be a much more substantial debate over the ethics of abortion. But to forbid it outright, by court order, would merely repeat the original mistake of Roe by removing abortion from the arena of meaningful public debate.

Liberals, conservatives, and the courts would do well to heed Gorsuch’s words. And Gorsuch himself would do well to remember them.

Norma McCorvey, RIP

Norma McCorvey, better known as Jane Roe—the plaintiff in Roe v. Wade—died over the weekend.

As the obituary at the link notes, she was a complicated woman—accidental architect of one of the most consequential Supreme Court decisions of the past century, and eventually one of its fiercest opponents. In 2005, she petitioned the Supreme Court to overturn Roe, on the primary basis that she, the plaintiff in the original case, regretted her part in the decision. Obviously, the Court declined.

Many believed her conversion to be less about true conviction than an attempt to capitalize on fame. Obviously, no one can know what her true intentions actually were, why she eventually abandoned and took up rhetorical arms against the cause that still considers her to be something of a patron saint. But her actions following her joining of the pro-life cause seemed sincere, if ineffective as tactics. Those, in the end, are all we can judge. Perhaps she acted so rashly, in picketing judicial confirmation hearings, out of a sense of guilt for what she had helped wrought. Or perhaps she was simply seeking attention.

Finally, one cannot help but wonder what became of the child that McCorvey bore only months before the Roe decision was handed down. Her pregnancy with that child, her desire to terminate that pregnancy, was what led the Court to consider the constitutionality of state abortion restrictions in the first place. It seems safe to assume that McCorvey never had any further interaction with, or knowledge of, the child she gave up for adoption. That individual presumably has no knowledge of the complicated role they have played in American history.

McCorvey, of course, did know. She might not have a famous name, and her death will get little coverage in a media obsessed with Donald Trump. But her legacy continues to have a deep and consequential impact on American life.

RIP.

The Supreme Court and the Second Amendment

The Second Amendment is, without question, the most infamous and vilified section of the Constitution today. Ask ten random people on the street to name what is discussed in Article I, Section 8, or the 21^st Amendment, or the 10^th Amendment, and most will stare at you blankly. But ask about the Second Amendment, and the majority of those same ten will likely know: “right to bear arms.”

It is under assault today—this many conservatives know. What they may not understand are the ways in which this assault directly relates to the Supreme Court. Until the landmark rulings of District of Columbia v. Heller (2008) and McDonald v. Chicago (2010), there was no major Supreme Court ruling, in at least the past fifty years, which protected an individual’s right to bear arms. The Second Amendment was, in many legal circles, a dead letter, a law still technically on the books but no longer enforced or taken very seriously by anyone of consequence.

Then came the legal battles that eventually culminated in the Heller and Chicago decisions. Democrats were scandalized—but unlike other major decisions, from Roe v. Wade to Citizens United, they could not easily take a firm, united stand on the issue. The simple fact is that, whereas Americans are divided on abortion and suspicious of large corporations, they by and large love their guns. For hunting, for self-defense, for any other legal and ethical purpose for which Americans have been using guns for centuries. So Democratic opposition to the rulings had to be disguised, or at least toned down. Democratic Senators like Harry Reid needed to protect their favorable NRA ratings.

Under liberal pressure in the years since, that disguise has gradually been dropping. Hillary Clinton said in a debate last October that the she opposed the Heller decision because it made toddlers more likely to shoot themselves.

This was, obviously, nonsense. But it underscores how the gains of the last few years might be put at risk by the confirmation of just one additional liberal judge to the Supreme Court. Just as conservatives want to see Roe v. Wade overturned, so too do many liberals dream of the Heller and McDonald decisions also being overturned, and the Supreme Court declaring that the Second Amendment only applies to the National Guard and is a “collective”, rather than individual, right (their favorite kind).

And even without express challenges to Heller and McDonald, less ambitious liberals could still work through the courts to undercut the Second Amendment, piece by gradual piece. Both decisions allow that some gun control is constitutional, as long as those laws do not effectively deprive an entire class of people from exercising their constitutional rights. No Court decision has yet clearly defined what the constitutional limits on such laws truly are, beyond stating, as Heller and McDonald did, that an absolute ban on handguns is beyond the pale. That still leaves many unanswered questions, which liberals will seek to subvert for their own purposes.

The Fourth Branch of Government

Over two centuries ago, James Madison, writing in The Federalist No. 47, recognized the danger of an unchecked administrative state. “The accumulation of all powers, legislative, executive, and judiciary, in the same hands,” he wrote, “whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” And now, step by incremental step, the “fourth branch of government” is making Madison’s fears into reality, abetted by the other constitutional branches of government.

Administrative agencies (such as the IRS, EPA, SEC, and numerous other members of the “alphabet soup”) are nominally housed within the executive branch of government, delegated authority by the president to enforce the law within their respective fields. No clause of the Constitution allows for a delegation of authority to this degree, or addresses the fact that many federal agencies venture far outside their original jurisdictions in their prosecution of ordinary citizens.

The legislature, meanwhile, often leaves holes in the bills it passes, purposeful absences of detail that the administrative agencies often fill with rules and regulations of their own design. If this is not lawmaking or legislating, what is?

And the judiciary? It has willfully abandoned its duty to enforce the Constitution and the strict letter of the law, primarily by refusing to even interfere in the daily happenings in executive-branch agencies except in extreme circumstances. Often the courts, including the Supreme Court, merely decline to hear certain types of cases, other times, they actively defend the right of agencies to follow their own rules and hold their own hearings against those they have accused of violating federal regulations, without possibility of judicial appeal. The Supreme Court even ruled in the case of Chevron v. Natural Resources Defense Council (1984) that “courts should defer to agency interpretations of such statutes unless they are unreasonable.”

It takes little imagination to realize what James Madison and the other Founders would have made of that particular argument, or the entire sorry state of federal administrative law.

Congress should do more to fix this normalization of administrative tyranny, and indeed has been doing more. Current law provides Congress with the ability to repeal recent regulations, a power it has been exerting heavily as of late. The REINS Act, which would expressly forbid future major regulations unless first approved by Congress, has also been steadily progressing through the legislature. And it may be possible for the Chevron doctrine, as it is known, to be effectively repealed by law without need for further judicial intervention.

But the final way to halt and reverse the growth of the fourth branch of government will require the three constitutional branches to work together. The President must nominate, and the Senate must confirm, dedicated originalist judges who will be unapologetic in fighting “independent agencies” whenever such a case does arise. Railing against the administrative state is not sexy. It will put many voters to sleep, not rouse them to action. But in the long term, increasingly powerful and unaccountable agencies run by faceless bureaucrats are just as much of a threat to the Republic as the latest Trump “Muslim ban” or Supreme Court attempt to mandate legalized gay marriage.

Stare Decisis is Ridiculous

Imagine that you make a mistake, one you only find out about later. It could be anything—maybe you installed a new shelf sloppily, and only later noticed that it was tilted.  Or maybe your wife asks you to pick something up from the store, and it’s an hour before her words actually register. Do you act to fix your mistake, or do you decide to just live with an angry wife and useless shelf?

If you’re like most people, you act to fix the mistake, and the quicker the better (hopefully before the wife comes home and finds out that you never went to the store). But the Supreme Court’s often strict adherence to the principle of stare decisis—the power of binding precedent—is sometimes like seeing a mistake and willfully refusing to act to make it right. In the Court’s case, however, this refusal to act can over the long term actually hurt the constitutional foundations of the country.

This approach may be, as Justice Scalia once said in a different context, pure applesauce, but it is largely the way the Court has functioned for at least the past century. All courts are notoriously reluctant to overturn established precedent, but the Supreme Court has gained particular notoriety for its reluctance to overturn older decisions, even bad ones which a majority of justices are readily willing to admit are bad. It is one of a number of reasons the Court took more than fifty years to overturn the judicial endorsement of “separate but equal” facilities for blacks and whites (first articulated in the 1896 case of Plessy v. Ferguson, and not overturned until Brown v. Board of Education in 1954).

And if the justices do actually decide to overturn one of their prior rulings, every law student knows that they must be allowed to reach that conclusion on their own. Judges hate being told that they made a wrong decision, even if that fact is self-evident to everyone, including the judges themselves. The easiest way to win a case is to argue it within the framework of existing precedent, and allow the judge or judges in question to reach their own conclusions regarding precedent. Judges, and justices, hate being wrong, and they hate other people pointing out that they were wrong even more.

This is stupid. Nearly anyone with even minimal political engagement can think of some Supreme Court precedent that they believe should be overturned, and the arguments for some are more convincing than others (looking at you, Roe v. Wade). But beyond anyone’s ideological vendettas against certain cases, it’s just silly that the Supreme Court should be so resistant to overturning bad precedent, no matter the length of time elapsed. In fact, if that particular case has been on the books for a long period of time, and a wide range of people agree that it was a bad decision, even more reason for acting quickly, before it damages the country even more.

A rejection of the traditional judicial deference toward precedent is not lacking on the current Court—Justice Clarence Thomas has often argued for a less servile attitude toward past opinions. Hopefully more justices will join his more realistic attitude toward the Court’s work in the future, including Neil Gorsuch.