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U.S. Constitution Title: Does Government Need A Good Reason For Restricting Your Freedom? www.forbes.com Does Government Need A Good Reason For Restricting Your Freedom? The U.S. flag flies in front of the Supreme Court building. Photographer: Andrew Harrer/Bloomberg That is the question our courts must often deal with. Many judges don’t think it does; they adhere to the idea that unless a law or regulation blatantly violates what they regard as a “fundamental” right, they should brush aside challenges to it. On the other hand, some judges take an aggressive stance toward laws and regulations that take away people’s property, impede their ability to engage in legitimate commerce, restrict their freedom of speech, or interfere with their rights to defend themselves. Rather than saying, “We’ll let the law stand since there might be some rational basis for it,” they insist on proof that the legislators or bureaucrats actually meant to address a serious public issue and did so in the least restrictive way. Those judges exemplify what Clark Neily and Evan Bernick call “judicial engagement.” Their recent Institute for Justice study Enforcing the Constitution: How the Courts Performed in 2014-2015 is an excellent introduction to the controversy. They highlight twenty important decisions – ten demonstrating judicial engagement and ten demonstrating judicial abdication. They begin with side-by-side pages listing “Engagement Taxonomy” and “Abdication Taxonomy.” In the former, judges: focus on the facts, seek the truth, and remain impartial. In the latter, judges fudge the facts, feign ignorance, disparage people’s rights, assist the government, defer to “democracy,” and engage in “inkblotting” (i.e., ignoring parts of the Constitution that big government advocates find inconvenient). Now let’s look at some of the cases Neily and Bernick discuss. One of the “engagement” cases is Brantley v. Kuntz, where the question was whether Isis Brantley, a renowned African hair-braider could be forced by Texas regulators to spend large amounts of money to comply with completely arbitrary rules for anyone who wants to teach hair-braiding. The law stipulated that she would have to invest in a fully-equipped barber college with at least 2,000 square feet of space, ten work stations, and five sinks before she could legally teach anyone to do braiding. Judge Sam Sparks declined to follow the “just say yes because government knows best” line suggested by the state and instead looked at the facts. The facts showed that the regulations were utterly unnecessary (among other things, hair- braiding involves no washing of hair, so why mandate any sinks?) and that no braiding school in Texas had ever met them. Judge Sparks struck down the state’s requirements as a violation of Ms. Brantley’s rights under the 14th Amendment. As a result, she can legally teach hair-braiding without wasting money just to comply with an irrational regulation. Another good decision was Edwards v. District of Columbia. At issue was the District’s licensing and testing requirements for tour guides. Anyone wanting to talk to tourists about the city’s points of interest had to pass a 100 question history test and pay $200 for a license. Bill Main and Tonia Edwards, who had begun a guided tour operation called “Segs in the City” challenged the law as an unjustified abridgement of their First Amendment rights. Did the District’s regulation actually further any proper governmental interest? The engaged judges on the panel could find no reason to think it did. Writing the opinion, Judge Janice Rogers Brown said, “How does memorization of addresses and other, pettifogging data about the District’s points of interest protect tourists from being swindled or harassed by charlatans?… Surely, success on the exam cannot be thought to impart both knowledge and virtue.” Judge Rogers’ painstaking analysis showed how irrational the licensing scheme was and the court declared it invalid. Tourists in Washington will consequently have more competitors trying to serve them if they want to see and hear about the sights whether they walk, ride Segways, or get around any other way. A third “engaged” decision was a civil asset forfeiture case named U.S. v. $48,100 in U.S. Currency. The case arose when John Nelson, while driving his parents’ RV from Colorado back to Wisconsin, was stopped for a traffic violation in Nebraska. He consented to a search of the vehicle, which led to the officer finding a small amount of marijuana and the substantial amount of cash. As is so common, that combination led to civil asset forfeiture, the police contending that the cash was connected with the crime of possessing marijuana. The case was initially contested in federal district court in Nebraska. Nelson’s father testified that the money was derived from legitimate activities and his son had the money because he had intended to relocate in Colorado (something that had not worked out). But the government argued that the money, even if honestly acquired, had been intended to pay for a large drug transaction. That was good enough for the judge, who ordered the forfeiture of the cash. On appeal, the Eighth Circuit reversed the order. Rather than merely accepting the government’s speculation that the money might have been meant for a drug transaction, the panel took the time to look at the evidence. It found no proof at all to support the government’s theory, but considerable evidence consistent with the “failed relocation” explanation offered by the Nelsons. As Neily and Bernick put it, “If every court were as vigilant, it would be far more difficult for law enforcement to take people’s property without ever proving that they actually committed a crime.” Continued from page 1 Now let’s look at some of the bad cases – ones where the judges abdicated and rubber stamped government power. As you might have guessed, the first example is the Supreme Court’s deplorable decision in King v. Burwell, where Chief Justice Roberts went through absurd legal contortions in order to uphold the validity of a key provision of the “Affordable Care Act.” Even though the law clearly stated that the IRS could only subsidize individuals who obtained health insurance coverage through a state-established insurance exchange, Roberts legislated from the bench, in effect rewriting the law. Adverting to George Orwell’s famous line in Animal Farm, Neily and Bernick say that this decision shows that “some laws are more equal than others.” With almost any other law where the meaning was in question, judges would go with “the most natural interpretation” of the language. But five members of the Supreme Court concluded for political reasons that they needed ignore the natural interpretation so as to “save” the ACA from its own terms. Another terrible decision was the Second Circuit’s holding in Sensational Smiles v. Connecticut Dental Board. The Dental Board had ruled that only licensed dentists were allowed to provide teeth-whitening services and the owners of a company that provided those services sued to avoid being put out of business because they didn’t employ dentists. Despite the absence of any evidence that a person who is not a trained dentist cannot safely and competently do teeth whitening, the court upheld the law. Why? The court declared the state’s rule legitimate because a state can have a preference for a particular group. In other words, it’s sufficient justification that the government wants to create and protect a monopoly. Neily and Bernick observe that the court’s approach makes judicial review of economic regulations “an empty charade.” The only good thing to be said for Sensational Smiles is that it creates a split among the courts of appeals over the legitimacy of pure economic protectionism and thus opens the door for the Supreme Court to settle the matter. And one more: Friedman v. City of Highland Park, a Seventh Circuit decision involving the Second Amendment. The city’s ordinance preventing ownership of “assault weapons” was challenged by resident Arie Friedman, who keeps such a weapon in his home for defense. By 2-1, the panel decided to uphold the ordinance, saying that the ban still “leaves residents with many self-defense options” and was constitutionally permissible because it might “increase the public’s sense of safety.” The trouble is that the majority ignored the Supreme Court’s rulings on the Second Amendment in District of Columbia v. Heller and McDonald v. City of Chicago. Neily and Bernick write, “The majority abdicated its truth-seeking responsibility in an area of law in which the Supreme Court has specifically instructed judges to fulfill that responsibility.” Post Comment Private Reply Ignore Thread Top • Page Up • Full Thread • Page Down • Bottom/Latest Begin Trace Mode for Comment # 1.
#1. To: tpaine (#0)
(Edited)
Today? No. All that is required is to put lies and conjecture into a few big words and you can do anything. Corrupt judges will help you.
#2. To: rlk (#1)
You forgot to mention ideologically and emotionally driven judges...
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