IN THE MATTER OF THE IMPEACHMENT

OF DONALD JOHN TRUMP

DEFENDANT’S MOTION TO DISMISS

This matter comes before the United States Senate on Defendant’s Motion to Dismiss. Because Defendant is no longer president, vice president, or a civil officer of the United States, the Article of Impeachment should be dismissed for lack of jurisdiction.

I. Background

Defendant is accused by the House of Representatives of “Incitement of Insurrection.” This charge results from a riot that occurred on January 6, 2021, during a joint session of Congress. Defendant and others gathered in Washington, D.C., were concerned about various irregularities in the presidential election and the efforts of state courts and state election officials to alter state election law despite the Constitution’s clear command that such matters rest with the state legislatures.

Defendant did address a large crowd of people on that day and stated that “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.” Upon hearing of the events at the Capitol turned from peaceful to violent, the Defendant took actions to curb the behavior. For example, Defendant posted the following on Twitter: “But you have to go home now. We have to have peace. We have to have law and order. We have to respect our great people in law and order. We don’t want anybody hurt.” Moreover, in the days after January 6, Defendant continued to call for peace and healing: “Now is the time for our nation to heal. And it’s time for peace and for calm. Respect for law enforcement is the foundation of the MAGA agenda.”

On Wednesday, January 20, 2021, Defendant’s term of office ended and he returned to private life. Six days later, members of the House of Representatives delivered the Article of Impeachment to the Senate. At the time of delivery, Joe Biden held the office of President of the United States. Defendant was in private life in Palm Beach, Florida.

II. Legal Argument

Because Defendant is not an elected or appointed officer of the United States, he is not subject to impeachment. The Constitution in Article II, Section 4, provides: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” In the Philadelphia Convention, the issue of executive removal was discussed only in the context of a sitting president. For example, James Madison cited instances where after election the president could lose his mental faculties or pervert his administration into a scheme of oppression. Hence, some constitutional method for removal was necessary. A main concern of the delegates was making the sitting president too dependent on another branch of government. Hence, the mention of high crimes and misdemeanors and the supermajority requirement in the Senate.

In Federalist No. 65, Alexander Hamilton described impeachment as an inquiry into the actions of “public men” as opposed to private citizens who are not in office. Importantly, in Federalist 69 Hamilton states: “The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law.” The logical interpretation of this statement is that while in office the president can be impeached. After he leaves office, legal remedies must be sought in state or federal court systems.

Moreover, in discoursing on Article II, Section 4, Mr. Justice Story in his Exposition on the Constitution describes the constitutional provision as enumerating “who shall be liable to be removed from office by impeachment.” Obviously, a person must be in office to be removed. This is the general context and understanding of impeachment.

Opponents of Defendant’s Motion will no doubt point to Article I, Section 3, which provides: “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” Hence, they argue that one does not have to be in office to be disqualified from holding another office. Such a reading is a stretch of the text. The natural language is that one must first be in office, be removed by a two-thirds vote in the Senate, and thus be disqualified from ever holding another office of honor.

Although not strictly a legal argument, Defendant expects opponents of his motion to raise the specter that absent the Senate accepting jurisdiction over this matter, then a future official would be emboldened to take nefarious actions on the eve of departure because he could not be tried in the Senate. Defendant submits that if an individual with malicious intent sought to engage in egregious misconduct, say, stealing from the public purse, conviction in the Senate is no deterrent. The Senate, sitting as a court, has no power to imprison, fine, or forfeit assets. The real deterrent to presidential misconduct is the tarnishing of a historical legacy, rather than avoidance of Senate trial and conviction, which is, with due respect, more theatre than legal proceeding.

In summary, the plain language of the text and historical commentary indicate that impeachment is a sword to be unsheathed only against malefactors holding office. The main point of impeachment is to remove the malefactor from office and thus end his reign of folly or crime. Defendant is no longer in office. He cannot be removed from office and is not subject to impeachment.

III. Conclusion

Impeachment is inherently political. Defendant, having already been through a show trial in the Senate that resulted in his acquittal, knows this to be true. However, unlike the prior trial, Defendant is not an officer of the United States. Because Defendant no longer holds public office, he cannot be put on trial in the Senate for allegedly inciting an insurrection. Accordingly, the Senate should dismiss the Article of Impeachment for lack of jurisdiction.

The post The Senate Should Dismiss the Article of Impeachment appeared first on The Beacon.

Peaceful protests are part of political dialogue and have value. There was nothing wrong last summer with people gathering in Minneapolis to express their opinions of law enforcement. Similarly, there was nothing wrong with a march in Washington, D.C., to express opinions about the counting of votes in the election. The problem with both is the unnecessary and inexcusable resort to violence and property damage. Neither is it a justified or indeed helpful component to political speech.

However, in the rush to condemn lawlessness, we should not sweep important issues under the rug. We should not give political elites, who are invested in centralized power and globalism, carte blanche to use the actions of irresponsible people as ammunition to advance their agenda by prohibiting peaceful dissent.

Election Fraud Should Be Investigated

Millions of Americans doubt that Joe Biden won the election fair and square. To avoid further unrest, the people need to believe that their votes count and our system operates on the level.

Catholic University’s Claes G. Ryn, offers an analysis of election data at The American Conservative that raises legitimate questions, as have many other thoughtful people. Indeed, three justices of the U.S. Supreme Court in a written statement rebuked Pennsylvania state judges for their actions in altering the deadline for ballots to be received.

Bottom line: Based on public perception, troubling statistics, and maladministration of state election laws, there should be an independent examination involving the contesting state legislatures of the results and procedures in key battleground states, with appropriate modifications made for future elections. Only that can dispel the doubts and set the stage to restore Americans’ confidence in our electoral system.

The Role of Leftist Operatives

A smaller issue, but nonetheless an important one, is the impetus for the attack on the Capitol. MAGA folks, despite the media keeping them under the microscope, have behaved quite well at large events leading up to the November election. Our summer of riots and destruction came from the far Left, not the Right. What happened? Was it that Trump’s rhetoric got too heated or are there other causes?

The Washington Times reported, then withdrew, reports that recognition software confirmed the presence of Antifa operatives. At least one Black Lives Matter activist was in the midst of the invaders—later disingenuously claiming he participated “as part of an effort to understand supporters of President Donald Trump.”

As more of those involved are identified and arrested it will be important that they face a dispassionate justice system meting out penalties fitting the crime—not railroaded by a narrative that all involved were “domestic terrorists” motivated by far-right ideology.

There Was No Coup Attempt

Nor was the disturbance at the Capitol a coup attempt. Politicians, the media, and commentators should stop exaggerating what happened. Wikipedia quite accurately describes a coup as “the removal of an existing government from power, usually through violent means. Typically, it is an illegal, unconstitutional seizure of power by a political faction, the military, or a dictator.”

If we want to know what a real coup looks like, think back to 1991 when communist hardliners put Mikhail Gorbachev under house arrest, did not allow him communication with the outside, and took control over the Soviet Government. The coup ultimately collapsed, but it was a real coup attempt. Knuckleheads breaking windows, taking pictures in Pelosi’s office, defacing interiors, and scattering papers around the Senate chamber is hardly a coup.

The political Left and its media allies are using terms such as “coup” and “insurrection” to make the most of this opportunity.

Silencing the Opposition

With the false narrative that Trump and his supporters are endangering American democracy, the Left is silencing dissenting voices on the Right. Big tech and social media giants are shutting down major conservative voices and the President of the United States: Parler, #WalkAway, @POTUS, Trump campaign emails. And a Yahoo News journalist is calling for Twitter to ban other journalists: “Now do Jack Posobiec, Dan Scavino, Mollie Hemingway, Rogan O’Handley, Tucker Carlson . . .”

In response, Parler Founder and CEO John Matze has indicated to The Epoch Times that his company is “prepared to take full legal action” against Apple, Google, and Amazon. However, Matze has since noted that “Every vendor from text message services to email providers to our lawyers all ditched us too on the same day.”

And U.S. Senator Josh Hawley has now threatened to sue ViacomCBS-owned Simon & Schuster for just cancelling the release of his forthcoming book, The Tyranny of Big Tech, saying that they “cannot support Senator Hawley after his role in what became a dangerous threat.” Hawley’s reply in his “statement on the woke mob at @simonschuster”:

This could not be more Orwellian. Simon & Schuster is canceling my contract because I was representing my constituents, leading a debate on the Senate floor on voter integrity, which they have now decided to redefine as sedition. Let me be clear, this is not just a contract dispute. It’s a direct assault on the First Amendment. Only approved speech can now be published. This is the Left looking to cancel everyone they don’t approve of. I will fight this cancel culture with everything I have. We’ll see you in court.

And to their credit, the ACLU has issued a statement condemning Facebook and Twitter’s decision to suspend Trump. The ACLU properly warns about the dangers of “unchecked power” and the potential for other voices to be silenced.

True to form regarding government officials using crises to greatly expand their own powers (see Robert Higgs’s landmark book, Crisis and Leviathan: Critical Episodes in the Growth of American Government), Joe Biden is eager to capitalize on the situation, labeling the protestors “Insurrectionists,” and “Domestic terrorists.” The Wall Street Journal has reported that “Biden has said he plans to make a priority of passing a law against domestic terrorism . . . [to] fight against ideologically inspired violent extremists and increasing funding to combat them.” So, we have had months in 2020 with violent BLM and Antifa operatives burning American cities, destroying property, defying law enforcement, and occupying city blocks in Portland. Yet, the capitol mob are now branded as domestic terrorists and extremists. Americans need protection against them? Really?

Civil libertarian Glenn Greenwald and many on the scene have confirmed that the crowd’s gaining access to the Capitol was more a matter of serendipity than a planned assault: defenses were minimal, Capitol police were quick to back down and some openly welcomed the crowd, and most of those who entered the Capitol spent their time taking selfies with statues rather than storming the chambers of power. As Greenwald has observed:

There was zero chance that the few hundred people who breached the Capitol could overthrow the U.S. Government—the most powerful, armed and militarized entity in the world—nor did they try.

Biden’s response is not proportionate to what happened at the Capitol. Conservatives, liberals, libertarians, and independents, though they might not have voted for Trump and have disagreements with him, should come to the aid of the civil liberties of his supporters. Instead, too many leaders have allowed the Left to set the terms of the debate and are cowardly trying to distance themselves.

Until Trump appeared, the major parties refused to address the concerns of those in “flyover states” about jobs, taxes, immigration, the family, cronyism, religious freedom, foreign interventionism, and other issues. Political elites want to go back to the happy days where the two parties marched in lockstep. Trump upset that apple cart. Common people found someone—a very imperfect person for sure—who listened to them and sought to address their issues.

Many elites are now united in seizing the day to ensure that no future threat to their power can take hold, no peaceful dissent and debate be provided a platform, with draconian new unconstitutional powers being proposed in the name of responding to a crisis.

The post The Real Danger of the Capitol Incident: Suppression of Truth and Dissent appeared first on The Beacon.

Unfortunately, the violence, theft, arson, killing and wanton destruction some protesters have unleashed—perhaps incited in part by outside terrorist provocateurs—is likely to exacerbate existing cultural and political schisms, making meaningful policy reform even more difficult. In fact, the violence and destruction is leaving deep and painful scars on the urban landscape.

“Returning violence for violence multiplies violence, adding deeper darkness to a night already devoid of stars . . . Hate cannot drive out hate: only love can do that.”

“Nonviolence is a powerful and just weapon, which cuts without wounding and ennobles the man who wields it. It is a sword that heals.”

—Martin Luther King, Jr.

Restoring these places—which include scores of small businesses with deep roots in their cities and neighborhoods—is unlikely without a re-affirmed commitment to the just application of the rule of law to protect persons and property, including minorities. Indeed, George Floyd’s death may well be an example of the tragic effects of treating some individuals differently based on prejudice and unwarranted fear.

Ironically, the nation has made too little progress on police brutality and the unequal application of its laws despite heightened awareness of the racial inequities associated with mass incarceration and law-enforcement tactics. But this persistent inequity and injustice does not have to be the case in the aftermath of George Floyd’s killing. Policy proposals are emerging that may well help move this discussion, and reform, meaningfully along. In the process, we can make progress toward a just application of the rule of law.

Racism and the Drug War

First of all, many people of good will are simply unaware of the actual racist origins of the U.S.’s “progressive,” 140-year war on drugs. That history is well established. (I review these origins in my 1992 book, Drug Policy and the Decline of American Cities.) Legally, the “war” was a slow burn, beginning with the anti-Chinese sentiment that led to prohibition on opium imports in 1880. Then, the prohibition effort extended to marijuana, using racist tropes about its effect on Mexican immigrants in the 1930s. The war’s most recent iteration saw a dramatic ramp up in incarceration beginning with Richard Nixon’s presidency. Ronald Reagan officially dubbed it a “war” in the early 1980s and doubled down with harsh sentencing laws and dramatically expanded the numbers of felony crimes.

The nation hasn’t looked back. The nation’s jails, prisons, and federal correctional facilities now house more than 2 million Americans. America accounts for about 25% of the world’s total imprisoned population.

But the drug war is only part of the problem. Fordham University professor John Pfaff, author of Locked In: The True Causes of Mass Incarceration and How to Achieve Reform, lays some of blame on overcharging by prosecutors (district attorneys) responding to unfounded fears in the community at large. A “tough on crime” political ethic has led to systems that put a premium on incarcerating suspected offenders rather than addressing the root causes of the offense, “restoring” or reintegrating ex-offenders back into the mainstream, or even achieving justice.

Prosecutorial Excess

The vast majority of convictions result from plea bargaining, which significantly disadvantages poor, minorities, and other marginalized populations. Without access to adequate legal representation, a “bargain” that included pleading “guilty” to a lesser crime with a short sentence, even if someone did not commit the crime, looks better than the even scarier outcome if a jury fails to acquit you of a dozen or more charges.

Ideological complaints about “structural racism” are ubiquitous and often tendentious; however, there is something systematically awry (although not because of free-market capitalism), but because of government mandates. This case is powerfully made in the award-winning 2016 documentary film 13th (now streaming on Netflix). The film’s title—13th—refers to the Thirteenth Amendment to the U.S. Constitution, which barred slavery. Specifically, the text reads “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” By carving out an exception for criminal conviction, the amendment opened the door for abuse as southern states. The exception was a back door to establish and reinforce subjugation of blacks through Jim Crow laws and dole out “free” labor to cronies in the business community through chain gangs and similar prison “work” programs.

The movie, however, seems to suggest that if we simply remove the clause “except as a punishment for a crime,” then the racist nature of the criminal justice system would be undermined. But this implies to a typical American reader that prisons themselves would have to be abolished, even for those who commit crimes. Abolishing all prisons or forms of incarceration or confinement is not the answer and is a nonstarter for the vast majority of Americans. The movie offers no resolution to this dilemma. As a result, the film, like the current protests over the killing of unarmed black men, provides little insight into practical steps toward reform.

Practical Policy Reforms to Reduce Police Brutality

Which brings us back to George Floyd and police brutality. If we continue to believe that at least some people who commit crimes must be removed from society—incarcerated or confined—how do we address obvious racial inequities, let alone police brutality against minorities and the poor?

Several organizations have been mobilizing for decades to roll back destructive mandatory minimums and three strikes sentencing laws. These laws have incarcerated hundreds of thousands of nonviolent offenders with little social benefit (see here and here for summaries of the issue). Moreover, while reform in these areas would reduce the “in take,” they don’t address police brutality per se.

Enter Rashawn Ray, a sociologist and David M. Rubenstein Fellow in Governance Studies at the Brookings Institution. Ray argues that two reforms could have a meaningful impact on law enforcement agencies and reduce police brutality. First, an officer’s previous work history should be part of the hiring process. If an officer was dismissed from their previous job for excessive force or inappropriate conduct, they should be barred from being hired back into law enforcement.

Second, and perhaps more important (because it also addresses the first recommendation), Ray argues law enforcement agencies should not use taxpayer funds to compensate victims of police misconduct—civil payments. Instead, law enforcement agencies should, like doctors and other professionals, buy the equivalent of private malpractice insurance. Then, their insurance premiums would reflect the relative risk the departments face from institutionalized misconduct. Minimizing conflict with the community and suspected offenders becomes a fiscal and strategic priority within the agency. Minorities will be direct beneficiaries of this change in policy.

Another policy reform I would add to the list would be ending qualified immunity, a legal shield created by the U.S. Supreme Court for police officers (and other state actors) even if they violate the law. This threshold has made it very difficult to prosecute police officers for criminal acts even when they violate the constitutional rights of a suspect. According to the Cato Institute’s Jay Schweikert, the U.S. Supreme Court may be ready to review several cases that might challenge this judicial doctrine (which is not constitutionally based). (See also the work by the Institute for Justice.)

And as was recently reported in the Wall Street Journal, government police unions in cities across the country play a central role in protecting bad cops. Too many see their job as protecting the jobs of all cops, even at the expense of justice and protecting the public. They tend to prop up politicians who protect bad cops from accountability to the taxpayers and citizens they are supposed to serve. More specifically in Minneapolis which, has had “progressives” running the city for decades and now with a white mayor and a black police chief, Officer Derek Chauvin, who was viewed as repeatedly abusive in 18 instances, was never held accountable for his bad behavior.

Time for Law Enforcement Agencies to Step Up

In the meantime, law enforcement agencies can impose their own standards. They could, for example, adopt minimally necessary force guidelines for arresting suspects. This step would put the emphasis on de-escalation and prompt questions about whether the force needed to arrest a suspect is commensurate with the crime. A violent criminal suspect, for example, with a warrant for their arrest might properly require a higher level of force compared to someone pulled over for a traffic violation, or, in the case of George Floyd, is suspected of passing a forged $20 bill.

Protest movements, whether the Tea Party or Black Lives Matter, can be quite effective at tearing institutions down. What they don’t do effectively is build, or reconstruct, just institutions. The unfortunate side-effects of the current protests put the deficiencies of mass protest in start relief.

In almost all cases the protests started peacefully. Many, however, degenerated into chaotic and violent riots as looters and anti-establishment groups hijacked the demonstrations for their own disruptive political and personal purposes. Blocks of businesses have been destroyed and pillaged, including small businesses that have served as cultural connections to our past and bulwarks against decline. Some people have even been killed protecting their personal property from looters. It is a vicious, deeply disturbing and ironic development that African-American citizens have been disproportionately victimized in these riots and on a huge scale as major urban communities are being destroyed.

Rebuilding civil society will be a critical task in the aftermath of the George Floyd riots. This task will be left to the policy experts and elected officials. But reconstructing just institutions can’t even begin unless we have solid proposals for what the building blocks for reform are. Addressing police brutality and its racial consequences is one step on that long-term path toward reform and restoration.

Additional Resources from the Independent Institute

For more on race, policing, criminal justice reform, and the rule of law, please see my movie reviews of Queen and Slim, Green Book, Marshall, Detroit, and Loving.

Sample Independent Institute books on criminal justice reform and policy include:

• To Serve and Protect: Privatization and Community in Criminal Justice, by Bruce L. Benson, with a foreword by Marvin E. Wolfgang
• The Pursuit of Justice: Law and Economics of Legal Institutions, edited by Edward J. López, with a foreword by Robert D. Tollison
• In All Fairness: Equality, Liberty, and the Quest for Human Dignity, edited by Robert M. Whaples, Michael C. Munger and Christopher J. Coyne, with a foreword by Richard A. Epstein
• Securing Civil Rights: Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, by Stephen P. Halbrook
• Race & Liberty in America: The Essential Reader, edited by Jonathan J. Bean
• Judge and Jury: American Tort Law on Trial, by Eric A. Helland and Alexander T. Tabarrok
• Changing the Guard: Private Prisons and the Control of Crime, edited by Alexander T. Tabarrok, with a foreword by Charles H. Logan
• Drug War Crimes: The Consequences of Prohibition, by Jeffrey A. Miron
• The Voluntary City: Choice, Community, and Civil Society, edited by David T. Beito, Peter Gordon and Alexander T. Tabarrok, with a foreword by Paul Johnson

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While even the most libertarian of us don’t like the stay-at-home orders and other dictates of the COVID-19 responses, most folks have held their tongues and tried to give public officials the benefit of the doubt as they deal with difficult issues.

Easter brought increased scrutiny of government orders. This is a good thing. Christians, and other citizens, are seeing just how easily government can abuse its emergency powers and play favorites among persons, businesses, and groups.

A good example comes out of Kentucky, where Louisville mayor Greg Fischer banned all religious services, even if congregants remained in their cars. He insisted that drive-up worship services are not “practical or safe.” He has, however, has allowed drive-through restaurants and liquor stores to stay open.

On Fire Christian Church took Mayor Fischer to federal court and received a temporary restraining order prohibiting “Louisville from enforcing; attempting to enforce; threatening to enforce; or otherwise requiring compliance with any prohibition on drive-in church services at On Fire.”

The Order opened with this:

On Holy Thursday, an American mayor criminalized the communal celebration of Easter.

That sentence is one that this Court never expected to see outside the pages of a dystopian novel, or perhaps the pages of The Onion. But two days ago, citing the need for social distancing during the current pandemic, Louisville’s Mayor Greg Fischer ordered Christians not to attend Sunday services, even if they remained in their cars to worship – and even though it’s Easter.

The Mayor’s decision is stunning.

And it is, “beyond all reason,” unconstitutional.

Where Mayor Fisher ran afoul of the First Amendment’s Free Exercise Clause was by treating religious gatherings different from certain non-religious gatherings. The Court elaborated:

Here, Louisville has targeted religious worship by prohibiting drive-in church services, while not prohibiting a multitude of other non-religious drive-ins and drive-throughs– including, for example, drive-through liquor stores. Moreover, Louisville has not prohibited parking in parking lots more broadly – including, again, the parking lots of liquor stores. When Louisville prohibits religious activity while permitting non-religious activities, its choice “must undergo the most rigorous of scrutiny.” That scrutiny requires Louisville to prove its interest is “compelling” and its regulation is “narrowly tailored to advance that interest.”

Clearly, if Louisville allowed other drive-through businesses and the use of public parking lots, its regulation targeting Easter services at On Fire Christian Church was not narrowly tailored to the compelling state interest of protecting public health. Accordingly, the temporary restraining order was properly issued.

This decision is a good sign. First, it shows that while the citizenry has generally respected the need for government to take aggressive actions to combat COVID-19, Americans aren’t giving the state a free pass because of the pandemic. We’ll put up with a lot to keep ourselves and our neighbors safe, but government cannot take our obedience for granted. When fundamental rights are involved, the people will push back. Second, it reminds us that legal channels are open to hold our officials accountable.

Undoubtedly, we’ll see more state and federal constitutional challenges to overbroad dictates as the pandemic continues.

The post Easter Brings Pushback on Coronavirus Restrictions appeared first on The Beacon.

Chappelle, 46, has been under fire for defending comedians Louis C.K. and Kevin Hart, and daring to tell jokes about transgender people, the “alphabet people,” as he calls them, a protected class under the political correctness regime.

“I, personally, am not afraid of other people’s freedom of expression,” Chapelle told reporters. “I don’t use it as a weapon. It just makes me feel better. And I’m sorry if I hurt anybody. Etcetera, etcetera, yada, yada, ya—everything I’m supposed to say.” The comic also came out with things he wasn’t supposed to say in politically correct company.

“First Amendment is first for a reason,” Chappelle said. “Second Amendment is just in case the first one doesn’t work.” That masterpiece of compression exceeds just about anything from politicians and campus bosses, who aim to seize the firearms of law-abiding citizens and look the other way as the threat to free speech mounts a surge. They don’t seem to understand that America’s free-speech zone, as Thomas Sowell has noted, includes the entire country.

The Second Amendment, as Chappelle says, is there in case the first one doesn’t work out. For what happens when both the First and Second Amendments don’t work out, see Stephen P. Halbrook’s, Gun Control in the Third Reich, and Gun Control in Nazi-Occupied France.

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The demise of our Constitution is evident in the recent confirmation fight with Judge Brett Kavanaugh. The fixed nature of originalism so scares the Left that the nominee must be stopped at all costs. The Left depends on a living Constitution to promote and allow various expansions of national power.

So, on this day let us raise our glasses to the good old written Constitution. It is dead, because the Left made it living.

The post Constitution Day appeared first on The Beacon.

The Court punted on the free speech question, but decided that the Commission’s adjudication of this case violated “the State’s duty under the First Amendment not to base laws or regulations on hostility to religion or religious viewpoint.” The Court found hostility based on remarks from commissioners describing the baker’s religious beliefs about marriage as “one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.” The Court also noted that the commission compared the baker’s free exercise claim to grounds used to support the Holocaust and slavery. On top of this, the Court found that in other cases where bakers had refused to bake cakes containing Biblical statements condemning homosexuality, the Commission found no unlawful discrimination.

The Commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion. Phillips was entitled to a neutral decision maker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which this case was presented, considered, and decided. In this case the adjudication concerned a context that may well be different going forward in the respects noted above. However later cases raising these or similar concerns are resolved in the future, for these reasons the rulings of the Commission and of the state court that enforced the Commission’s order must be invalidated.

This was the right result in this case, but the Court has done little to provide meaningful guidance as free exercise and free speech clash with public accommodation statutes making sexual orientation a protected classification. It is unlikely we will ever see another Commission decision that overtly expresses hostility to Christianity. With this opinion, we do not know if the artistic expression of a specialty baker is grounds for refusing to provide services under the First Amendment. We really don’t know what the Court will do with a similar case not possessing the unique circumstances of a biased decision maker.

So, religious liberty prevailed here. We have no clue what the result will be the next time. It seems the Court is aware of the rock-and-a-hard-place situation its recent sexuality and marriage jurisprudence has placed on orthodox Christians. There seems to be a desire to throw them a constitutional lifeline, but there’s also evidence of alligator arms fearing to push back too much against the prevailing spirit of the age.

The post Religious Liberty Wins at SCOTUS...Sort Of appeared first on The Beacon.

The author of more than 50 books, including his pioneering volume, The Spirit of Democratic Capitalism (1982), he was the 1994 Templeton Prize Laureate for Progress in Religion. His books have been translated into most all major Western languages, plus Chinese, Korean, Japanese, and Bengali.

He was Distinguished Visiting Fellow in the Arthur and Carlyse Ciocca Center for Principled Entrepreneurship in the Tim and Steph Busch School of Business and Economics at Catholic University of America, and he formerly served as the George Frederick Jewett Chair in Religion and Public Policy at the American Enterprise Institute and Ambassador to the U.N. Commission on Human Rights. During his career, he further taught at Harvard, Stanford, SUNY Old Westbury, Syracuse, Notre Dame, and Ave Maria universities, and he was the recipient of 27 honorary degrees.

My wife Mary and I have treasured memories of being with him in Rome, for example, while attending a private Pontifical Council for the Family conference. As many attest, Michael was extraordinarily good company, and we shared great joy touring local sights and a memorable evening of laughter and dining together in the legendary restaurant, La Cisterna (founded in 1630), where he delighted in taking us to the underground to see its namesake well. The conference also included Nobel Laureate economist Gary Becker, Marian Krzaklewski (Chairman, Solidarity), Cardinal Alfonso López Trujillo, columnist George F. Will, John Klink (President, International Catholic Migration Commission), historian Leonard Liggio, columnist Michael J. Gerson, economist John C. Goodman, Bishop William Francis Murphy, historian Allan C. Carlson, columnist William A. McGurn, and others, and was an unforgettable few days of exploring profound ideas around the relation of the state vs. the family. We were further privileged to be with Michael for a private audience with Pope John Paul II.

His work on the spiritual basis for the morality of capitalism had a profound influence on the economic thinking of Ronald Reagan and Margaret Thatcher as well as academics, business and civic leaders, policymakers, religious leaders, journalists, and people of good will worldwide.

Every conversation with Michael was a delight—one could hear the veritable twinkle in his voice. In this regard, he and I shared a special admiration for and inspiration from the work of C. S. Lewis, G. K. Chesterton, and J. R. R. Tolkien, as well as Thomas Aquinas, Alexis de Tocqueville, Lord Acton, F. A. Hayek, and other writers.

We were most recently blessed by conversations and working with Michael as he graciously provided the foreword to the Independent Institute’s forthcoming book, Pope Francis and the Caring Society, especially as this contribution was completed during his final illness and may well be the last product of his truly seminal career.

Requiem æternam dona ei, Domine.

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