Federal Court Quotes

The typical mandatory sentence for a first-time drug offense in federal court is five or ten years. By contrast, in other developed countries around the world, a first-time drug offense would merit no more than six months in jail, if jail time is imposed at all.

In which case she supposed that she would see him again, when she pleaded guilty in federal court

There has never been a Supreme Court ruling on the admissibility of polygraph evidence in federal court.

The books diverge and radiate, as fluid as finches on isolated islands. But they share a core so obvious it passes for given. Every one imagines that fear and anger, violence and desire, rage laced with the surprise capacity to forgive—character—is all that matters in the end. It’s a child’s creed, of course, just one small step up from the belief that the Creator of the Universe would care to dole out sentences like a judge in federal court. To be human is to confuse a satisfying story with a meaningful one, and to mistake life for something huge with two legs. No: life is mobilized on a vastly larger scale, and the world is failing precisely because no novel can make the contest for the world seem as compelling as the struggles between a few lost people.

Relief, fear, and humiliation. Her parents paid for a pricey prep school education in D.C. She graduated magna cum laude from Georgetown with a degree in political science. She breezed through law school and finished with honors. A dozen megafirms offered her jobs after a federal court clerkship. The first twenty-nine years of her life had seen overwhelming success and little failure. To be discharged in such a manner was crushing. To be escorted out of the building was degrading. This was not just a minor bump in a long, rewarding career.

Character is all that matters in the end." It's a child's creed, of course; just one small step up from the belief that the creator of the universe would care to dole out sentences like a judge in federal court. To be human is to confuse a satisfying story with a meaningful one.

Cranks are much too important. They are part of the other America—Greil Marcus’s old, weird America. A charlatan is a crank with a book deal and a radio program and a suit in federal court. A charlatan succeeds only in Idiot America. A charlatan is a crank who succeeds too well. A charlatan is a crank who’s sold out.

The previous 24 hours had resulted in 17,000 casualties—some 8,000 Confederates and some 9,000 Federals—most of them strewn across the ground around the salient.

The examples center around the existence of a conflict among the lower federal courts or the state courts on “an important federal question.

In 1936, the federal court struck down all federal restrictions against birth control, in a case memorably named U.S. v. One Package of Japanese Pessaries.

One feature eliminated local control of education; it compelled the governor to close and cut off funds to any school that planned to desegregate under federal court order.

On Rachel's show for November 7, 2012: We're not going to have a supreme court that will overturn Roe versus Wade. There will be no more Antonio Scalias and Samuel Aleatos added to this court. We're not going to repeal health reform. Nobody is going to kill medicare and make old people in this generation or any other generation fight it out on the open market to try to get health insurance. We are not going to do that. We are not going to give a 20% tax cut to millionaires and billionaires and expect programs like food stamps and kid's insurance to cover the cost of that tax cut. We'll not make you clear it with your boss if you want to get birth control under the insurance plan that you're on. We are not going to redefine rape. We are not going to amend the United States constitution to stop gay people from getting married. We are not going to double Guantanamo. We are not eliminating the Department of Energy or the Department of Education or Housing at the federal level. We are not going to spend $2 trillion on the military that the military does not want. We are not scaling back on student loans because the country's new plan is that you should borrow money from your parents. We are not vetoing the Dream Act. We are not self-deporting. We are not letting Detroit go bankrupt. We are not starting a trade war with China on Inauguration Day in January. We are not going to have, as a president, a man who once led a mob of friends to run down a scared, gay kid, to hold him down and forcibly cut his hair off with a pair of scissors while that kid cried and screamed for help and there was no apology, not ever. We are not going to have a Secretary of State John Bolton. We are not bringing Dick Cheney back. We are not going to have a foreign policy shop stocked with architects of the Iraq War. We are not going to do it. We had the chance to do that if we wanted to do that, as a country. and we said no, last night, loudly.

Moreover, it appears that Mueller did not uncover new evidence during the course of his investigation, but resurrected an old Justice Department investigation of Manafort in which no charges were ever brought. In federal court, lawyers for the special counsel admitted it. Judge T.S. Ellis III then accused Mueller’s team of exerting “unfettered power” to bring down the president:22

Wilson argued further, as he had to, that the federal courts are not bound to the Constitution. “The weightiest import of the matter is seen only when it is remembered that the courts are the instruments of the nation’s growth, and that the way in which they serve that use will have much to do with the integrity of every national process. If they determine what powers are to be exercised under the Constitution, they by the same token determine also the adequacy of the Constitution in respect of the needs and interests of the nation; our conscience in matters of law and our opportunity in matters of politics are in their hands.”10 Moreover, the only legitimate opinions the federal courts can render are those that endorse and promote the expansion of federal power. “[T]hat if they had interpreted the Constitution in its strict letter, as some proposed, and not in its spirit, like the charter of a business corporation and not like the charter of a living government, the vehicle of a nation

This early rejection of an advisory role established a lasting principle: that the federal courts have the constitutional power to decide only those questions that arise in the context of disputes between opposing parties.

When we pay attention to this history,  a pattern emerges: first,  the Redeemers attacked voting rights. Then they attacked public education, labor, fair tax policies, and progressive leaders. Then they took over the state and federal courts, so they could be used to render rulings that would undermine the hope of a new America. This effort culminated in the landmark case Plessy v. Ferguson in 1896, which upheld the constitutionality of state laws requiring segregation of public facilities under the doctrine "separate but equal." And then they made sure that certain elements had guns so that they could return the South back to the status quo ante, according to their deconstructive immoral philosophy.

They got back the Senate but we have the courts. By the nineties the Supreme Court will be block-solid Republican appointees, and the federal bench—Republican judges like land mines, everywhere, everywhere they turn. Affirmative action? Take it to court. Boom! Land mine. And

Woodrow Wilson would write approvingly in his 1908 book, Constitutional Government in the United States, that “the War between the States established… this principle, that the federal government is, through its courts, the final judge of its own powers.” 26 This was the Jeffersonians’ greatest fear. Thanks to Lincoln's war, states’ rights would no longer perform its most important function: protecting the citizens of the states from federal judicial tyranny.

There is something very destructive—not to mention delusional—about the notion that there is some plot deep within the nation’s capital—in the FBI, in the federal courts, in the intelligence community—to undermine democratically elected officials and, as Trump often charged, “undo” his election in 2016. Let me be diplomatic here: that’s horseshit.

Even today, the contours of what is often referred to as the “Article III jurisdiction” of the federal courts remain contested. The important points here are simply these: that questions concerning the federal courts’ jurisdiction are anchored deeply in the nation’s constitutional origins, and that the Supreme Court itself has provided the answers.

It was in the circuit courts that the justices fleshed out some important principles of federal law and jurisdiction. One such instance came in 1792 in Hayburn’s Case.

Although the delegates appear to have assumed that the federal courts would exercise some form of judicial review over federal and state laws, Article III says nothing explicit on the subject. It states in broad terms that the federal courts’ judicial power “shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties.

wrote Justice Wilson. Not surprisingly, the states were alarmed by this development, and a constitutional amendment to overrule the decision was introduced two days later. In 1798, the Eleventh Amendment received final ratification, providing that the jurisdiction of the federal courts “shall not be construed to extend” to cases brought by citizens of one state against another state.

Continued reliance on preemption analysis suppresses judicial attention to the discrimination and equality concerns that should be motivating courts' consideration of subfederal immigration regulations.

However, even an attorney of moderate talent can postpone doomsday year after year, for the system of appeals that pervades American jurisprudence amounts to a legalistic wheel of fortune, a game of chance, somewhat fixed in the favor of the criminal, that the participants play interminably, first in the state courts, then through the Federal courts until the ultimate tribunal is reached—the United States Supreme Court.

More intriguingly, in poll after poll, when Americans are asked what public institutions they most respect, three bodies are always at the top of their list: the Supreme Court, the armed forces, and the Federal Reserve System. All three have one thing in common: they are insulated from the public pressures and operate undemocratically. It would seem that Americans admire these institutions, preciselly because they lead rather than follow.

The President is at liberty, both in law and conscience, to be as big a man as he can. His capacity will set the limit; and if Congress be overborne by him, it will be no fault of the makers of the Constitution, – it will be from no lack of constitutional powers on its part, but only because the President has the nation behind him, and the Congress has not.” “The chief instrumentality by which the law of the Constitution has been extended to cover the facts of national development has of course been judicial interpretation, – the decisions of the courts. The process of formal amendment of the Constitution was made so difficult by provisions of the Constitution itself that it has seldom been feasible to use it; and the difficulty of formal amendment has undoubtedly made the courts more liberal, not to say lax, in their interpretation than they would otherwise have been. The whole business of adaptation has been theirs, and they have undertaken it with open minds, sometimes even with boldness and a touch of audacity...” “The old theory of the sovereignty of the States, which used so to engage our passions, has lost its vitality. The war between the States established at least this principle, that the federal government is, through its courts, the final judge of its own powers... We are impatient of state legislatures because they seem to us less representative of the thoughtful opinion of the country than Congress is. We know that our legislatures do not think alike, but we are not sure that our people do not think alike...

IT BEGAN WITH A GUN. On September 1, 1939, the German army invaded Poland. Two days later, Britain and France declared war on Germany. In the October 1939 issue of Detective Comics, Batman killed a vampire by shooting silver bullets into his heart. In the next issue, Batman fired a gun at two evil henchmen. When Whitney Ellsworth, DC’s editorial director, got a first look at a draft of the next installment, Batman was shooting again. Ellsworth shook his head and said, Take the gun out.1 Batman had debuted in Detective Com-ics in May 1939, the same month that the U.S. Supreme Court issued a ruling in United States v. Miller, a landmark gun-control case. It concerned the constitutionality of the 1934 National Firearms Act and the 1938 Federal Firearms Act, which effectively banned machine guns through prohibitive taxation, and regulated handgun ownership by introducing licensing, waiting period, and permit requirements. The National Rifle Association supported the legislation (at the time, the NRA was a sportsman’s organization). But gun manufacturers challenged it on the grounds that federal control of gun ownership violated the Second Amendment. FDR’s solicitor general said the Second Amendment had nothing to do with an individual right to own a gun; it had to do with the common defense. The court agreed, unanimously.2

US Constitution is unconstitutional.” – Circuit Judges Alfred T. Goodwin and Stephen Reinhardt, Federal Appeals Court, San Francisco, 2002 (overturned) “US Constitution is unconstitutional.” – The United States Supreme Court, 2079

One measure decreed that when ships docked at Charleston, any free black sailors on board must be jailed so they could not carry messages to black people onshore. When a Supreme Court justice found the imprisonments unconstitutional, South Carolina openly defied the ruling, saying that stopping “insubordination” was “paramount” to “all laws” and “all constitutions.” Baffled by this early example of a state nullifying federal law, national officials did nothing.

In 1984, Fred Korematsu went back to federal court, seeking to have his conviction voided retroactively on the theory that the government had withheld crucial facts from the judiciary. The court agreed with him. The Department of Justice and the Army, it found, had distorted the record to make it appear that there was a legitimate security concern.113 A few years later, Congress granted reparations of twenty thousand dollars to each Japanese-American who had been interned.

Broad as the power of Congress is under the Enforcement Clause of the Fourteenth Amendment, RFRA contradicts vital principles necessary to maintain separation of powers and the federal balance.” The Rehnquist Court majority used similar interpretations of Section 5 and of the Commerce Clause to overturn other statutes, including the Violence Against Women Act, which permitted women who were victims of gender-motivated violence to sue their attackers in federal court (United States v.

Between 1880 and 1931 the courts issued more than 1,800 injunctions to suppress labor strikes. Labor “combinations” (unions) were declared a violation of due process, a way of coercively extracting wealth from decent defenseless rich employers. Collective bargaining, it was maintained, deprived both owner and worker of “freedom of contract.” By 1920, pro-business federal courts had struck down roughly three hundred labor laws passed by state legislatures to ease inhumane working conditions.

Fore more than a decade - from the mid-1950s until the late 1960s - conservatives systematically and strategically linked opposition to civil rights legislation to calls for law and order, arguing that Martin Luther King Jr.'s philosophy of civil disobedience was a leading cause of crime. Civil rights protests were frequently depicted as criminal rather than political in nature, and federal courts were accused of excessive 'lenience' toward lawlessness, thereby contributing to the spread of crime.

For extra measure, [Daniel Patrick] Moynihan put another 'hold' on two other GOP favorites for federal courts of appeals, prompting White House counsel [Boyden] Gray made sure that [George H.] Bush knew that Moynihan had been blocking action on the appeals court nominations 'to extract a district court judge from us,' and he advised the president to sign the Sotomayor nomination but hold off making it official until the administration had gotten word that the two appeals court nominees were confirmed.

The Rafa Nadal the world saw as he stormed onto the Centre Court lawn for the start of the 2008 Wimbledon final was a warrior, eyes glazed in murderous concentration, clutching his racquet like a Viking his axe. A glance at Federer revealed a striking contrast in styles: the younger player in sleeveless shirt and pirate’s pantaloons, the older one in a cream, gold-embossed cardigan and classic Fred Perry shirt; one playing the part of the street-fighting underdog, the other suave and effortlessly superior.

Court played his role to the hilt now, cocking his head as if he were wondering if the person asking the question might possibly be mentally deranged. “The CIA? You think I bought my way free of the Agency? I fucking shot my way out, pal.” He rolled his eyes. “Pay off the CIA? They don’t need me to pay them off. They are part of the U.S. federal government, the guys that print U.S. dollars, or didn’t you know?” Dai asked his next question in a flat, emotionless voice. “Did you arrive in a Dassault Falcon yesterday?

To the extent that it conveys the image of the three branches of the federal government, each operating in its own sphere, the phrase “separation of powers” is misleading. A more accurate image is one of dynamic interaction, in which the Supreme Court is an active participant.

While the South lost the Civil War technically, White Southerners did not in fact lose the war substantively. After all, Jim Crow, convict labor, and lynching happened with near total impunity, and African Americans experienced decades of pernicious neglect from the federal courts and government. Exploitation ran amok. Inequality persists. And the nation turning a refusing eye, allowing the Southerners to work out their own business over the lives of Black people on the land of the Indigenous all across the region, gave the South their victory lap.

On May 31, 1870, invoking the new amendments as authority, Congress passed the Enforcement Act, which made racist terrorism a federal offense. To help put it into effect, Grant and Congress created the Department of Justice, with authority over all federal civil and criminal cases.

the U.S. Supreme Court decides an issue—for example, interpreting the Constitution to determine a woman had the right in consultation with her doctor to terminate a pregnancy—that decision cannot be overturned or modified by any state or federal law, only by the U.S. Supreme Court itself.8

Why did you come to the United States?' That's the first question on the intake questionnaire for unaccompanied child migrants. The questionnaire is used in the federal immigration court in New York City where I started working as a volunteer interpreter in 2015. My task there is a simple one: I interview children, following the intake questionnaire, and then translate their stories from Spanish to English. But nothing is ever that simple. I hear words, spoken in the mouths of children, threaded in complex narratives. They are delivered with hesitance, sometimes distrust, always with fear. I have to transform them into written words, succinct sentences, and barren terms. The children's stories are always shuffled, stuttered, always shattered beyond the repair of a narrative order. The problem with trying to tell their story is that it has no beginning, no middle, and no end.

Morrison, 2000). The Court also ruled that states could not be bound, as employers, by the federal laws against employment discrimination, either on the basis of age (Kimel v. Florida Board of Regents, 2000) or on the basis of disability (Board of Regents of the University of Alabama v. Garrett, 2003).

He sought a writ of mandamus, a judicial order commanding the delivery of his commission. It seemed a readily available remedy, because Congress in the Judiciary Act of 1789 had explicitly provided that citizens could go directly to the Supreme Court to seek a writ of mandamus against a federal official.

These are the thoughts of all men in all ages and lands, they are not original with me, If they are not yours as much as mine they are nothing or next to nothing, If they do not enclose everything they are next to nothing, If they are not the riddle and the untying of the riddle they are nothing, If they are not just as close as they are distant they are nothing. This is the grass that grows wherever the land is and the water is, This is the common air that bathes the globe. This is the breath of laws and songs and behaviour, This is the tasteless water of souls.... this is the true sustenance, It is for the illiterate.... it is for the judges of the supreme court . . . . it is for the federal capitol and the state capitols, It is for the admirable communes of literary men and composers and singers and lecturers and engineers and savans, It is for the endless races of working people and farmers and seamen. This is the trill of a thousand clear cornets and scream of the octave flute and strike of triangles. I play not a march for victors only.... I play great marches for conquered and slain persons. Have you heard that it was good to gain the day? I also say it is good to fall.... battles are lost in the same spirit in which they are won.

THE NEW DEAL didn’t transform the Constitution only by institutionalizing nine unelected judges with lifetime tenure as a permanent constitutional convention, turning Woodrow Wilson’s theory into hard reality. It also allowed Congress to create, at the president’s request and with the blessing of the Court, an unprecedented regulatory state, made up of a constellation of administrative agencies—from the Federal Housing Administration and the Federal Communications Commission to the National Labor Relations Board and the Securities and Exchange Commission—that make rules, enforce them, and adjudicate transgressions of them.

The convention debated at length over how the members of the Supreme Court should be selected, eventually settling on nomination by the president and confirmation by the Senate. By providing that federal judges “shall hold their offices during good Behaviour,” the delegates intended to protect judicial independence.

For a recent citation of John Marshall’s famous line about the Court’s “province and duty” to “say what the law is,” see the Supreme Court’s 2008 decision in Boumediene v. Bush, invalidating an act of Congress that stripped the federal courts of jurisdiction to hear cases brought by detainees at Guantanamo Bay. Writing for the majority, Justice Kennedy said that “[t]o hold the political branches have the power to switch the Constitution on or off at will… would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say ‘what the law is’” [citing Marbury].

We who are Americans witness in this hour the exhaustion of the American revolutionary ethic. Wherever we turn, that is what is to be seen: in the ironic public policy of internal colonialism symbolized by the victimization of the welfare population, in the usurpation of the federal budget—and thus, the sacrifice of the nation’s material and moral necessities—by an autonomous military-scientific-intelligence principality, by the police aggressions against black citizens, by political prosecutions of dissenters, by official schemes to intimidate the media and vitiate the First Amendment, by cynical designs to demean and neutralize the courts.

The Republicans have successfully persuaded much of the public that they are the party of Joe Sixpack and Democrats are the party of Jessica Yogamat. The result is that today certain swaths of the country are so thoroughly dominated by the radical Republican right that certain federal laws and even constitutional protections are, practically speaking, a dead letter there. If identity liberals were thinking politically, not pseudo-politically, they would concentrate on turning that around at the local level, not on organizing yet another march in Washington or preparing yet another federal court brief. The paradox of identity liberalism is that it paralyzes the capacity to think and act in a way that would actually accomplish the things it professes to want. It is mesmerized by symbols: achieving superficial diversity in organizations, retelling history to focus on marginal and often minuscule groups, concocting inoffensive euphemisms to describe social reality, protecting young ears and eyes already accustomed to slasher films from any disturbing encounter with alternative viewpoints. Identity liberalism has ceased being a political project and has morphed into an evangelical one. The difference is this: evangelism is about speaking truth to power. Politics is about seizing power to defend the truth.

The history of black workers in the United States illustrates the point. As already noted, from the late nineteenth-century on through the middle of the twentieth century, the labor force participation rate of American blacks was slightly higher than that of American whites. In other words, blacks were just as employable at the wages they received as whites were at their very different wages. The minimum wage law changed that. Before federal minimum wage laws were instituted in the 1930s, the black unemployment rate was slightly lower than the white unemployment rate in 1930. But then followed the Davis-Bacon Act of 1931, the National Industrial Recovery Act of 1933 and the Fair Labor Standards Act of 1938—all of which imposed government-mandated minimum wages, either on a particular sector or more broadly. The National Labor Relations Act of 1935, which promoted unionization, also tended to price black workers out of jobs, in addition to union rules that kept blacks from jobs by barring them from union membership. The National Industrial Recovery Act raised wage rates in the Southern textile industry by 70 percent in just five months and its impact nationwide was estimated to have cost blacks half a million jobs. While this Act was later declared unconstitutional by the Supreme Court, the Fair Labor Standards Act of 1938 was upheld by the High Court and became the major force establishing a national minimum wage. As already noted, the inflation of the 1940s largely nullified the effect of the Fair Labor Standards Act, until it was amended in 1950 to raise minimum wages to a level that would have some actual effect on current wages. By 1954, black unemployment rates were double those of whites and have continued to be at that level or higher. Those particularly hard hit by the resulting unemployment have been black teenage males. Even though 1949—the year before a series of minimum wage escalations began—was a recession year, black teenage male unemployment that year was lower than it was to be at any time during the later boom years of the 1960s. The wide gap between the unemployment rates of black and white teenagers dates from the escalation of the minimum wage and the spread of its coverage in the 1950s. The usual explanations of high unemployment among black teenagers—inexperience, less education, lack of skills, racism—cannot explain their rising unemployment, since all these things were worse during the earlier period when black teenage unemployment was much lower. Taking the more normal year of 1948 as a basis for comparison, black male teenage unemployment then was less than half of what it would be at any time during the decade of the 1960s and less than one-third of what it would be in the 1970s. Unemployment among 16 and 17-year-old black males was no higher than among white males of the same age in 1948. It was only after a series of minimum wage escalations began that black male teenage unemployment not only skyrocketed but became more than double the unemployment rates among white male teenagers. In the early twenty-first century, the unemployment rate for black teenagers exceeded 30 percent. After the American economy turned down in the wake of the housing and financial crises, unemployment among black teenagers reached 40 percent.

It is astonishing that President Obama’s conception of federal power is so vast that four liberal justices on the Supreme Court have joined their colleagues in unanimously ruling against the president more than 20 times in five and a half years—double his predecessor’s rate of unanimous defeats and 25 percent greater than President Clinton’s.

As for the Cherokees, they faced a set of laws passed by Georgia: their lands were taken, their government abolished, all meetings prohibited. Cherokees advising others not to migrate were to be imprisoned. Cherokees could not testify in court against any white. Cherokees could not dig for the gold recently discovered on their land. A delegation of them, protesting to the federal government, received this reply from Jackson’s new Secretary of War, Eaton: “If you will go to the setting sun there you will be happy; there you can remain in peace and quietness; so long as the waters run and the oaks grow that country shall be guaranteed to you and no white man shall be permitted to settle near you.

and shoot-don’t-shoot training. This is the Oklahoma v. Tuttle decision (1984, 10th Federal Circuit Court), and today many law enforcement trainers teach that a law enforcement agency is probably not in compliance with federal circuit court guidance if they are still shooting at anything other than a clear, realistic depiction of a deadly force threat.

A longtime, well-respected Republican election lawyer, Ben Ginsberg, explained what the scores of lawsuits had concluded—that Trump was wrong. Twenty-two federal judges appointed by Republican presidents, including 10 appointed by President Trump himself, and at least 24 elected or appointed Republican state judges dismissed Trump’s claims. As Ginsberg pointed out, dozens of courts had analyzed the underlying factual allegations and ruled against Trump and his allies: In all the cases that were brought—I have looked at the more than 60 that include more than 180 counts… the simple fact is that the Trump campaign did not make its case.… And in no instance did a court find that the charges of fraud were real.

In this country, a federal grand jury probe is the closest thing to Courts of Inquisition or a Star Chamber that exists. There are few rights, nothing that comes close to cross-examination, and no right to counsel inside the jury room. There are no real rules of evidence. The only thing they can’t do is torture you, and on that you must take the government’s word.

Three circumstances seem to me to contribute more than all others to the maintenance of the democratic republic in the United States. The first is that federal form of government which the Americans have adopted, and which enables the Union to combine the power of a great republic with the security of a small one. The second consists in those township institutions which limit the despotism of the majority and at the same time impart to the people a taste for freedom and the art of being free. The third is to be found in the constitution of the judicial power. I have shown how the courts of justice serve to repress the excesses of democracy, and how they check and direct the impulses of the majority without stopping its activity.

As Burbank points out, relations between the branches are governed as much by norms and customs as by formal structures. The Constitution permits Congress to impeach and remove federal judges, for example, but the norm is that impeachment is reserved for criminal behavior or serious ethical lapses, and not for judicial rulings with which members of Congress disagree.

What religious Americans might have been slow to realize is that the ACLU’s long march through the institutions of America has culminated at the door of Obama’s White House. Behind that door stands the one we have “been waiting for,” as liberals chanted about Obama in 2008. Obama is the fulfillment of the ACLU’s messianic secularist hopes. No president has done more to empty the public square of Christians than Barack Obama. To the delight of secularists, Obama has been stacking the federal courts with ACLU-style judges who read the First Amendment through an ahistorical and atheistic prism, or as they like to call it, the “living Constitution,” which is nothing more than a euphemism for whatever they think the Constitution should mean in our supposedly enlightened times.

The Ledbetter episode came and went quickly. It is entirely predictable that other discrete disputes over the intent of Congress and the meaning of federal statutes will similarly come and go in the future. But there exists a more profound constitutionally-based struggle between the Court and Congress over the boundaries of congressional lawmaking authority, with origins deep in the country’s history.

WE THE PEOPLE PULL THE CORD . . . there is no one who understands; there is no one who seeks God. Romans 3:11 The Founding Fathers didn’t think too highly of human nature, so they created three branches of government to keep power-hungry officials in check. They also slipped another “check” on these politicians into the Constitution. Remember learning how the Constitution can be amended through Congress? Well, even better, there’s a lesser-known way to change it when necessary, without Congress or the president stopping “We the People.” Our Founders knew government could grow so drunk on its own power that it wouldn’t ever voluntarily restrict itself, so constitutionalist George Mason allowed for a “Convention of States” in Article V to give the power back to the people. My friend Mark Levin describes this: “By giving the state legislatures the ultimate say on major federal laws, on major federal regulations, on major Supreme Court decisions, should 3/5 of state legislatures act to override them within a two year period, it doesn’t much matter what Washington does or doesn’t do. It matters what you do . . . the goal is to limit the entrenchment of Washington’s ruling class.” Keep educating the people, Mark!

The trial, despite the subserviency of the court to the Nazi authorities, cast a great deal of suspicion on Goering and the Nazis, but it came too late to have any practical effect. For Hitler had lost no time in exploiting the Reichstag fire to the limit.   On the day following the fire, February 28, he prevailed on President Hindenburg to sign a decree “for the Protection of the People and the State” suspending the seven sections of the constitution which guaranteed individual and civil liberties. Described as a “defensive measure against Communist acts of violence endangering the state,” the decree laid down that:      Restrictions on personal liberty, on the right of free expression of opinion, including freedom of the press; on the rights of assembly and association; and violations of the privacy of postal, telegraphic and telephonic communications; and warrants for house searchers, orders for confiscations as well as restrictions on property, are also permissible beyond the legal limits otherwise prescribed.   In addition, the decree authorized the Reich government to take over complete power in the federal states when necessary and imposed the death sentence for a number of crimes, including “serious disturbances of the peace” by armed persons.8   Thus with one stroke Hitler was able not only to legally gag his opponents and arrest them at his will but, by making the trumped-up Communist threat “official,” as it were, to throw millions of the middle class and the peasantry into a frenzy of fear that unless they voted for National Socialism at the elections a week hence, the Bolsheviks might take over.

Kluger notes that these cases arguably amount to “personal injury claims in disguise,” and that the Supreme Court has ruled that federal cigarette-labeling laws are an effective shield against such claims. Logically, in other words, the states ought to be suing smokers, not cigarette makers. And perhaps smokers, in turn, ought to be suing Social Security and private pension funds for all the money they’ll save by dying early.

Indeed, when people talk about how the Constitution is designed to implement the principles of the Declaration, they almost always point to the Fourteenth Amendment—sometimes without noticing that this means they are not talking about the Founders’ Constitution. In part due to Supreme Court decisions, however, the federal government ended up protecting individuals primarily from states and secondarily, if at all, from other individuals.

Negro voting rights were politically necessary for Grant and his party. Before the Civil War, the Republicans were exclusively a Northern party; but afterward, they would have to win elections in the South, state and federal, lest the Southern-based Democratic Party retake control of the federal government and reverse the Union victory. And the Republicans could not do that unless Negroes, their natural—and most numerous—constituency, were free to vote.

De facto segregation, we tell ourselves, has various causes. when African Americans moved into a neighborhood like Ferguson, a few racially prejudiced white families decided to leave, and then as the number of black families grew, the neighborhood deteriorated, and "white flight" followed. Real estate agents steered whites away from black neighborhoods, and blacks away from white ones. Banks discriminated with "redlining," refusing to give mortgages to African Americans or extracting unusually severe terms from them with subprime loans. African Americans haven't generally gotten the educations that would enable them to earn sufficient incomes to live in white suburbs, and, as a result, many remain concentrated in urban neighborhoods. Besides, black families prefer to live with one another. All this has some truth, but it remains a small part of the truth, submerged by a far more important one: until the last quarter of the twentieth century, racially explicit policies of federal, state, and local governments defined where whites and African Americans should live. Today's residential segregation in the North, South, Midwest, and West is not the unintended consequence of individual choices and of otherwise well-meaning law or regulation but of unhidden public policy that explicitly segregated every metropolitan area in the United States. The policy was so systematic and forceful that its effects endure to the present time. Without our government's purposeful imposition of racial segregation, the other causes - private prejudice, white flight, real estate steering, bank redlining, income differences, and self-segregation - still would have existed but with far less opportunity for expression. Segregation by intentional government action is not de facto. Rather, it is what courts call de jure: segregation by law and public policy.

The Law Enforcement Assistance Act of 1965 and the Omnibus Crime Control and Safe Streets Act of 1968 lavished even more federal funds on fighting crime. In addition, landmark Supreme Court decisions such as Terry v. Ohio—which gave the police virtually unlimited powers to stop and frisk citizens without probable cause—intensified the policing of poor neighborhoods and people of color, which, in turn, resulted in record arrest rates. Before long, prisons like Attica were bursting at the seams.

For the US to be like Russia today,” he wrote, “it would be necessary to have massive corruption by the majority of members of Congress as well as by the Departments of Justice and Treasury, and agents of the FBI, CIA, DIA, IRS, Marshall Service, Border Patrol, state and local police officers, the Federal Reserve Bank, Supreme Court justices, US district court judges, support of the varied organized crime families, the leadership of the Fortune 500 companies, at least half of the banks in the US, and the New York Stock Exchange.

A second example of this abandonment of fundamental principles can be found in recent trends in the U.S. Supreme Court. Note what Lino A. Graglia, a professor of law at the University of Texas, has to say about this: 'Purporting merely to enforce the Constitution, the Supreme Court has for some thirty years usurped and exercised legislative powers that its predecessors could not have dreamed of, making itself the most powerful and important institution of government in regard to the nature and quality of life in our society.... 'It has literally decided issues of life and death, removing from the states the power to prevent or significantly restrain the practice of abortion, and, after effectively prohibiting capital punishment for two decades, now imposing such costly and time-consuming restrictions on its use as almost to amount to prohibition. 'In the area of morality and religion, the Court has removed from both the federal and state government nearly all power to prohibit the distribution and sale or exhibition of pornographic materials.... It has prohibited the states from providing for prayer or Bible-reading in the public schools. 'The Court has created for criminal defendants rights that do not exist under any other system of law-for example, the possibility of almost endless appeals with all costs paid by the state-and which have made the prosecution so complex and difficult as to make the attempt frequently seem not worthwhile. It has severely restricted the power of the states and cities to limit marches and other public demonstrations and otherwise maintain order in the streets and other public places.

The First Congress of the United States passed the Bill of Rights—the first ten amendments to the Constitution—to put fences around the federal government, saying it could not establish any specific religion, silence the press, police speech, stop the people from assembling peacefully, take away the right of the people to bear arms, deny trials by jury, arbitrarily seize property, and so on. These rights were not rights given to individuals, as the modern Supreme Court has interpreted them, but rather were designed to hold back the government if it began to overreach.

they’ve worked their way through The Hundred Greatest Novels of All Time. He can’t remember why fiction used to make him so impatient. Nothing else has more power now to get him through the hours before lunch. He hangs on the most ridiculous plot crumb, as if the future of humanity hinges on it. The books diverge and radiate, as fluid as finches on isolated islands. But they share a core so obvious it passes for given. Every one imagines that fear and anger, violence and desire, rage laced with the surprise capacity to forgive—character—is all that matters in the end. It’s a child’s creed, of course, just one small step up from the belief that the Creator of the Universe would care to dole out sentences like a judge in federal court. To be human is to confuse a satisfying story with a meaningful one, and to mistake life for something huge with two legs. No: life is mobilized on a vastly larger scale, and the world is failing precisely because no novel can make the contest for the world seem as compelling as the struggles between a few lost people. But Ray needs fiction now as much as anyone. The heroes, villains, and walk-ons his wife gives him this morning are better than truth.

Speculators, meanwhile, have seized control of the global economy and the levers of political power. They have weakened and emasculated governments to serve their lust for profit. They have turned the press into courtiers, corrupted the courts, and hollowed out public institutions, including universities. They peddle spurious ideologies—neoliberal economics and globalization—to justify their rapacious looting and greed. They create grotesque financial mechanisms, from usurious interest rates on loans to legalized accounting fraud, to plunge citizens into crippling forms of debt peonage. And they have been stealing staggering sums of public funds, such as the $65 billion of mortgage-backed securities and bonds, many of them toxic, that have been unloaded each month on the Federal Reserve in return for cash.21 They feed like parasites off of the state and the resources of the planet. Speculators at megabanks and investment firms such as Goldman Sachs are not, in a strict sense, capitalists. They do not make money from the means of production. Rather, they ignore or rewrite the law—ostensibly put in place to protect the weak from the powerful—to steal from everyone, including their own shareholders. They produce nothing. They make nothing. They only manipulate money. They are no different from the detested speculators who were hanged in the seventeenth century, when speculation was a capital offense. The obscenity of their wealth is matched by their utter lack of concern for the growing numbers of the destitute. In early 2014, the world’s 200 richest people made $13.9 billion, in one day, according to Bloomberg’s billionaires index.22 This hoarding of money by the elites, according to the ruling economic model, is supposed to make us all better off, but in fact the opposite happens when wealth is concentrated in the hands of a few individuals and corporations, as economist Thomas Piketty documents in his book Capital in the Twenty-First Century.23 The rest of us have little or no influence over how we are governed, and our wages stagnate or decline. Underemployment and unemployment become chronic. Social services, from welfare to Social Security, are slashed in the name of austerity. Government, in the hands of speculators, is a protection racket for corporations and a small group of oligarchs. And the longer we play by their rules the more impoverished and oppressed we become. Yet, like

I wish I had asked myself when I was younger. My path was so tracked that in my 8th-grade yearbook, one of my friends predicted— accurately— that four years later I would enter Stanford as a sophomore. And after a conventionally successful undergraduate career, I enrolled at Stanford Law School, where I competed even harder for the standard badges of success. The highest prize in a law student’s world is unambiguous: out of tens of thousands of graduates each year, only a few dozen get a Supreme Court clerkship. After clerking on a federal appeals court for a year, I was invited to interview for clerkships with Justices Kennedy and Scalia. My meetings with the Justices went well. I was so close to winning this last competition. If only I got the clerkship, I thought, I would be set for life. But I didn’t. At the time, I was devastated. In 2004, after I had built and sold PayPal, I ran into an old friend from law school who had helped me prepare my failed clerkship applications. We hadn’t spoken in nearly a decade. His first question wasn’t “How are you doing?” or “Can you believe it’s been so long?” Instead, he grinned and asked: “So, Peter, aren’t you glad you didn’t get that clerkship?” With the benefit of hindsight, we both knew that winning that ultimate competition would have changed my life for the worse. Had I actually clerked on the Supreme Court, I probably would have spent my entire career taking depositions or drafting other people’s business deals instead of creating anything new. It’s hard to say how much would be different, but the opportunity costs were enormous. All Rhodes Scholars had a great future in their past. the best paths are new and untried. will this business still be around a decade from now? business is like chess. Grandmaster José Raúl Capablanca put it well: to succeed, “you must study the endgame before everything else. The few who knew what might be learned, Foolish enough to put their whole heart on show, And reveal their feelings to the crowd below, Mankind has always crucified and burned. Above all, don’t overestimate your own power as an individual. Founders are important not because they are the only ones whose work has value, but rather because a great founder can bring out the best work from everybody at his company. That we need individual founders in all their peculiarity does not mean that we are called to worship Ayn Randian “prime movers” who claim to be independent of everybody around them. In this respect, Rand was a merely half-great writer: her villains were real, but her heroes were fake. There is no Galt’s Gulch. There is no secession from society. To believe yourself invested with divine self-sufficiency is not the mark of a strong individual, but of a person who has mistaken the crowd’s worship—or jeering—for the truth. The single greatest danger for a founder is to become so certain of his own myth that he loses his mind. But an equally insidious danger for every business is to lose all sense of myth and mistake disenchantment for wisdom.

The dilemma facing Bush and the Republicans was clear. If Marshall left, they could not leave the Supreme Court an all-white institution; at the same time, they had to choose a nominee who would stay true to the conservative cause. The list of plausible candidates who fit both qualifications pretty much began and ended with Clarence Thomas. … There was awkwardness about the selection from the start. "The fact that he is black and a minority has nothing to do with this," Bush said. "He is the best qualified at this time." The statement was self-evidently preposterous; Thomas had served as a judge for only a year and, before that, displayed few of the customary signs of professional distinction that are the rule for future justices. For example, he had never argued a single case in any federal appeals court, much less in the Supreme Court; he had never written a book, an article, or even a legal brief of any consequence. Worse, Bush's endorsement raised themes that would haunt not only Thomas's confirmation hearings but also his tenure as a justice. Like the contemporary Republican Party as a whole, Bush and Thomas opposed preferential treatment on account of race—and Bush had chosen Thomas in large part because of his race. The contradiction rankled.

The Supreme Court upheld the law in the 2012 decision of National Federation of Independent Business v. Sebelius, but not because it believed the Congress had the power to force people to buy insurance under the Commerce Clause or the Necessary and Proper Clause. Congress, the 5–4 majority decided, had the power to mandate that people buy health insurance because the fine for failing to do so could be regarded as a tax. This particular argument was buried in the legal defense of the law and was only teased out in the final day of arguments by the Court itself. This proves that the Court cannot be trusted to block unconstitutional legislation.

In the United States, the Supreme Court blocked several attempts to levy a federal income tax in the late nineteenth and early twentieth centuries and then blocked minimum wage legislation in the 1930s, while finding that slavery and, later, racial discrimination were perfectly compatible with basic constitutional rights for nearly two centuries. More recently, the French Constitutional Court has apparently come up with a theory of what maximum income tax rate is compatible with the Constitution: after a period of high-level legal deliberation known only to itself, the Court hesitated between 65 and 67 percent and wondered whether or not it should include the carbon tax.

[N]o one has more power in the criminal justice system that prosecutors. Few rules constrain the exercise of prosecutorial discretion. The prosecutor is free to dismiss a case for any reason or no reason at all, regardless of the strength of the evidence. The prosecutor is also free to file more charges against the defendepant the can realistically be proven in court, so long as probable cause arguable exists. Whether a good plea deal is offered to a defendant is entirely up to the prosecutor. And if the mood strikes, the prosecutor can transfer drug defendants to the federal system, where penalties are far more severe. Juveniles, for their part, cam be transferred to adult court, where they can be sent to adult prison.

They write the steady stream of editorials that appear in local and national newspapers to reinforce the hackneyed orthodoxies of the pharmaceutical paradigms—“all vaccines are safe and effective,” etc. They root out heresy by sitting on the state medical boards—the “Inquisition” courts—that censure and de-license dissident doctors. They control the medical journals and peer-review journal literature to fortify Pharma’s agenda. They teach on medical school faculties, populate journal editorial boards, and chair university departments. They supervise hospitals and chair hospital departments. They act as expert witnesses for pharmaceutical companies in civil court and the federal vaccine court. They present awards to one another.

There is inherent drama to a major Supreme Court case in which the powerful institutional actors include the Court itself. Some will emerge as winners and some as losers. But it is important to recognize that outside the courtroom, in less dramatic ways, the Court continually interacts with the other branches. The Court submits its annual budget request to Congress, and the justices take turns going before the relevant congressional subcommittees to testify about the Court’s fiscal needs. Congress determines the salaries of the justices and all federal judges. When John Roberts became chief justice, he made it a priority to persuade the president and Congress of the need for a long-deferred pay raise for federal judges, a plea that fell on deaf ears.

The moral and ethical questions I explore in Take My Hand remain salient today. In 2013, the Center for Investigative Reporting revealed that between 2006 and 2010, nearly 150 women in California state prisons had been sterilized without official approval. A year later, the Associated Press reported on multiple instances of prosecutors in Nashville, Tennessee, submitting permanent birth control as part of plea deals. In 2020, a whistleblower alleged that immigrant women detained by Immigration and Customs Enforcement (ICE) were being forcibly sterilized without their consent in US detainment facilities. In fact, compulsory sterilization of “unfit” inmates of public institutions is still federally protected by a 1927 US Supreme Court ruling, Buck v. Bell.

If government had declined to build racially separate public housing in cities where segregation hadn’t previously taken root, and instead had scattered integrated developments throughout the community, those cities might have developed in a less racially toxic fashion, with fewer desperate ghettos and more diverse suburbs. If the federal government had not urged suburbs to adopt exclusionary zoning laws, white flight would have been minimized because there would have been fewer racially exclusive suburbs to which frightened homeowners could flee. If the government had told developers that they could have FHA guarantees only if the homes they built were open to all, integrated working-class suburbs would likely have matured with both African Americans and whites sharing the benefits. If state courts had not blessed private discrimination by ordering the eviction of African American homeowners in neighborhoods where association rules and restrictive covenants barred their residence, middle-class African Americans would have been able gradually to integrate previously white communities as they developed the financial means to do so. If churches, universities, and hospitals had faced loss of tax-exempt status for their promotion of restrictive covenants, they most likely would have refrained from such activity. If police had arrested, rather than encouraged, leaders of mob violence when African Americans moved into previously white neighborhoods, racial transitions would have been smoother. If state real estate commissions had denied licenses to brokers who claimed an “ethical” obligation to impose segregation, those brokers might have guided the evolution of interracial neighborhoods. If school boards had not placed schools and drawn attendance boundaries to ensure the separation of black and white pupils, families might not have had to relocate to have access to education for their children. If federal and state highway planners had not used urban interstates to demolish African American neighborhoods and force their residents deeper into urban ghettos, black impoverishment would have lessened, and some displaced families might have accumulated the resources to improve their housing and its location. If government had given African Americans the same labor-market rights that other citizens enjoyed, African American working-class families would not have been trapped in lower-income minority communities, from lack of funds to live elsewhere. If the federal government had not exploited the racial boundaries it had created in metropolitan areas, by spending billions on tax breaks for single-family suburban homeowners, while failing to spend adequate funds on transportation networks that could bring African Americans to job opportunities, the inequality on which segregation feeds would have diminished. If federal programs were not, even to this day, reinforcing racial isolation by disproportionately directing low-income African Americans who receive housing assistance into the segregated neighborhoods that government had previously established, we might see many more inclusive communities. Undoing the effects of de jure segregation will be incomparably difficult. To make a start, we will first have to contemplate what we have collectively done and, on behalf of our government, accept responsibility.

When we blame those who brought about the brutal murder of Emmett Till, we have to count President Eisenhower, who did not consider the national honor at stake when white Southerners prevented African Americans from voting; who would not enforce the edicts of the highest court in the land, telling Chief Justice Earl Warren, 'All [opponents of desegregation] are concerned about is to see that their sweet little girls are not required to sit in schools alongside some big, overgrown Negroes.' We must count Attorney General Herbert Brownell Jr., who demurred that the federal government had no jurisdiction in the political assassinations of George Lee and Lamar Smith that summer, thus not only preventing African Americans from voting but also enabling Milam and Bryant to feel confident that they could murder a fourteen-year-old boy with impunity. Brownell, a creature of politics, likewise refused to intervene in the Till case. We must count the politicians who ran for office in Mississippi thumping the podium for segregation and whipping crowds into a frenzy about the terrifying prospects of school desegregation and black voting. This goes double for the Citizens' Councils, which deliberately created an environment in which they knew white terrorism was inevitable. We must count the jurors and the editors who provided cover for Milam, Bryant, and the rest. Above all, we have to count the millions of citizens of all colors and in all regions who knew about the rampant racial injustice in America and did nothing to end it. The black novelist Chester Himes wrote a letter to the New York Post the day he heard the news of Milam's and Bryant's acquittals: 'The real horror comes when your dead brain must face the fact that we as a nation don't want it to stop. If we wanted to, we would.

The chorus of criticism culminated in a May 27 White House press conference that had me fielding tough questions on the oil spill for about an hour. I methodically listed everything we'd done since the Deepwater had exploded, and I described the technical intricacies of the various strategies being employed to cap the well. I acknowledged problems with MMS, as well as my own excessive confidence in the ability of companies like BP to safeguard against risk. I announced the formation of a national commission to review the disaster and figure out how such accidents could be prevented in the future, and I reemphasized the need for a long-term response that would make America less reliant on dirty fossil fuels. Reading the transcript now, a decade later, I'm struck by how calm and cogent I sound. Maybe I'm surprised because the transcript doesn't register what I remember feeling at the time or come close to capturing what I really wanted to say before the assembled White House press corps: That MMS wasn't fully equipped to do its job, in large part because for the past thirty years a big chunk of American voters had bought into the Republican idea that government was the problem and that business always knew better, and had elected leaders who made it their mission to gut environmental regulations, starve agency budgets, denigrate civil servants, and allow industrial polluters do whatever the hell they wanted to do. That the government didn't have better technology than BP did to quickly plug the hole because it would be expensive to have such technology on hand, and we Americans didn't like paying higher taxes - especially when it was to prepare for problems that hadn't happened yet. That it was hard to take seriously any criticism from a character like Bobby Jindal, who'd done Big Oil's bidding throughout his career and would go on to support an oil industry lawsuit trying to get a federal court to lift our temporary drilling moratorium; and that if he and other Gulf-elected officials were truly concerned about the well-being of their constituents, they'd be urging their party to stop denying the effects of climate change, since it was precisely the people of the Gulf who were the most likely to lose homes or jobs as a result of rising global temperatures. And that the only way to truly guarantee that we didn't have another catastrophic oil spill in the future was to stop drilling entirely; but that wasn't going to happen because at the end of the day we Americans loved our cheap gas and big cars more than we cared about the environment, except when a complete disaster was staring us in the face; and in the absence of such a disaster, the media rarely covered efforts to shift America off fossil fuels or pass climate legislation, since actually educating the public on long-term energy policy would be boring and bad for ratings; and the one thing I could be certain of was that for all the outrage being expressed at the moment about wetlands and sea turtles and pelicans, what the majority of us were really interested in was having the problem go away, for me to clean up yet one more mess decades in the making with some quick and easy fix, so that we could all go back to our carbon-spewing, energy-wasting ways without having to feel guilty about it. I didn't say any of that. Instead I somberly took responsibility and said it was my job to "get this fixed." Afterward, I scolded my press team, suggesting that if they'd done better work telling the story of everything we were doing to clean up the spill, I wouldn't have had to tap-dance for an hour while getting the crap kicked out of me. My press folks looked wounded. Sitting alone in the Treaty Room later that night, I felt bad about what I had said, knowing I'd misdirected my anger and frustration. It was those damned plumes of oil that I really wanted to curse out.

We've known for a long time that this day would come. Today, an illegitimate Supreme Court-- stacked with justices who have been credibly accused of sexual harassment and assault, installed by presidents who took power via undemocratic sleights of hand-- ratified their cause of eroding the 14th amendment and the right to bodily autonomy. The decision to overturn Roe v. Wade will be lethal to Americans - particularly, Black women and queer people - who now will lose their already limited access to abortions. If establishment Democrats sit back and allow this Court to continue to dismantle every right protecting marginalized people, this decision won't just cost lives - it also will cost us our democracy. Our leaders in Washington must recognize how the tyranny of the minority, white supremacy, misogyny and bigotry brought us to this dark day. And they must act now to protect voting rights and enshrine the right to an abortion into federal law -- before it's too late.

Reading the transcript now, a decade later, I’m struck by how calm and cogent I sound. Maybe I’m surprised because the transcript doesn’t register what I remember feeling at the time or come close to capturing what I really wanted to say before the assembled White House press corps: That MMS wasn’t fully equipped to do its job, in large part because for the past thirty years a big chunk of American voters had bought into the Republican idea that government was the problem and that business always knew better, and had elected leaders who made it their mission to gut environmental regulations, starve agency budgets, denigrate civil servants, and allow industrial polluters do whatever the hell they wanted to do. That the government didn’t have better technology than BP did to quickly plug the hole because it would be expensive to have such technology on hand, and we Americans didn’t like paying higher taxes—especially when it was to prepare for problems that hadn’t happened yet. That it was hard to take seriously any criticism from a character like Bobby Jindal, who’d done Big Oil’s bidding throughout his career and would go on to support an oil industry lawsuit trying to get a federal court to lift our temporary drilling moratorium; and that if he and other Gulf-elected officials were truly concerned about the well-being of their constituents, they’d be urging their party to stop denying the effects of climate change, since it was precisely the people of the Gulf who were the most likely to lose homes or jobs as a result of rising global temperatures. And that the only way to truly guarantee that we didn’t have another catastrophic oil spill in the future was to stop drilling entirely; but that wasn’t going to happen because at the end of the day we Americans loved our cheap gas and big cars more than we cared about the environment, except when a complete disaster was staring us in the face; and in the absence of such a disaster,

In urging the court to invalidate the Trespass Act, Hamilton expounded the all-important doctrine of judicial review—the notion that high courts had a right to scrutinize laws and if necessary declare them void. To appreciate the originality of this argument, we must recall that the country still lacked a federal judiciary. The state legislatures had been deemed the most perfect expression of the popular will and were supposed to possess supreme power. Mrs. Rutgers’s lawyers asserted state supremacy and said congressional action could not bind the New York legislature. At bottom, Rutgers v. Waddington addressed fundamental questions of political power in the new country. Would a treaty ratified by Congress trump state law? Could the judiciary override the legislature? And would America function as a true country or a loose federation of states? Hamilton left no doubt that states should bow to a central government: “It must be conceded that the legislature of one state cannot repeal the law of the United States.

Liquor, guns, motorcycle helmets (legislation had gone back and forth on that)—mainly white masculine pursuits—are fairly unregulated. But for women and black men, regulation is greater. Within given parameters, federal law gives women the right to decide whether or not to abort a fetus. But the state of Louisiana has imposed restrictions on clinics offering the procedure, which, if upheld in the U.S. Supreme Court, would prevent all but one clinic, in New Orleans, from offering women access to it. Any adult in the state can also be jailed for transporting a teenager out of state for the purposes of an abortion if the teen has not informed her parents. Young black males are regulated too. Jefferson Davis Parish passed a bill banning the wearing of pants in public that revealed "skin beneath their waists or their underwear" and newspaper accounts featured images, taken from the back, of two black teenage boys exposing large portions of their undershorts. The parish imposed a $50 fine for a first offense and $100 for a second.

The law isn’t supposed to be about unspoken excuses and behind-the-scenes calculations. The beauty of the system is that judges and juries are allowed to consider only what is seen and heard in open court. In between the white lines of this arena, it’s all supposed to make sense. This is where we all get to be equal again. In the defendant’s chair, rich and poor ride the same roller coaster, face the same music. Case has to match case. Sentence should match sentence. But they don’t match anymore. They probably never did, and probably it was never even close. But at least there was the illusion of it. What’s happened now, in this new era of settlements and non prosecutions is that the state has formally surrendered to its own excuses. It has decided just to punt from the start and take the money which doesn’t become really wrong until it turns around the next day and decides to double down on the less-defended, flooring it all the way to trial against a welfare mom or some joker who sold a brick of dope in the projects. Repeat the same process a few million times, and that’s how the jails in American get the population they have. Even if every single person they sent to jail were guilty, the system would still be an epic fail—it’s the jurisprudential version of Pravda, where the facts int he paper might have all been true on any given day, but the lie was all in what was not said. That’s what nobody gets, that the two approaches to justice may individually make a kind of sense. but side by side they’re a dystopia, here common city courts become factories for turning poor people into prisoners, while federal prosecutors on the white-collar beat turn into overpriced garbage men, who behind closed doors quietly dispose of the sins of the rich for a fee. And it’s evolved this way over time and for a thousand reasons, so that almost nobody is aware of the whole picture, the two worlds so separate that they’re barely visible to each other. The usual political descriptors like “unfairness” and “injustice” don’t really apply. it’s more like a breakdown into madness.

FORGET FERES DOCTRINE And the military has immunity! Yes! The feres doctrine! It states “the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where injuries arise out of or are in the course of activity incident to service” (U.S. Supreme Court 1950). Federal law and our Supreme Court shield acts of rape and sexual brutality in the military as proven by its subsequent ruling on a 2001 case that denied a plaintiffs right to file a civil suit against her accusers. Yet when women report the crime, it is handled internally Commanders are given the discretion to resolve complaints. The report may not go beyond his office. Many times he's part of the problem or a sympathizer with the offender. This certainly was my case! Our Supreme Court ruled as recently as 2001 that rape is an injury incident to the course of activity in the service! THE HEINOUS CRIME OF RAPE IS ACCEPTABLE AND CONDONED BY OUR SUPREME COURT! WOMEN ARE FAIR GAME FOR RAPE AND HARRASSMENT, ACCORDING TO OUR SUPREME COURT! CONGRESS IS NO BETTER! NO LAWS ARE PASSED TO PROTECT US IN THE MILITARY AGAINST THE STATUTE OF LIMITATION FOR THE FELONY OF RAPE!

Pedigree was the centerpiece of Supreme Court chief justice Roger B. Taney’s majority opinion in the Dred Scott decision (1857). Though this case assessed whether a slave taken into a free state or federal territory should be set free, its conclusions were far more expansive. Addressing slavery in the territories, the proslavery Marylander dismissed Jefferson’s prohibition of slavery in the Northwest Ordinance as having no constitutional standing. He constructed his own version of the original social contract at the time of the Revolution, the Declaration of Independence, and the Constitutional Convention: only the free white children of the founding generation were heirs to the original agreement; only pedigree could determine who inherited American citizenship and whose racial lineage warranted entitlement and the designation “freeman.” Taney’s opinion mattered because it literally made pedigree into a constitutional principle. In this controversial decision, Taney demonstrably rejected any notion of democracy and based the right of citizenship on bloodlines and racial stock. The chief justice ruled that the founders’ original intent was to classify members of society in terms of recognizable breeds.

The biggest fear for homeschooled children is that they will be unable to relate to their peers, will not have friends, or that they will otherwise be unable to interact with people in a normal way. Consider this: How many of your daily interactions with people are solely with people of your own birth year?  We’re not considering interactions with people who are a year or two older or a year or two younger, but specifically people who were born within a few months of your birthday. In society, it would be very odd to section people at work by their birth year and allow you to interact only with persons your same age. This artificial constraint would limit your understanding of people and society across a broader range of ages. In traditional schools, children are placed in grades artificially constrained by the child’s birth date and an arbitrary cut-off day on a school calendar. Every student is taught the same thing as everyone else of the same age primarily because it is a convenient way to manage a large number of students. Students are not grouped that way because there is any inherent special socialization that occurs when grouping children in such a manner. Sectioning off children into narrow bands of same-age peers does not make them better able to interact with society at large. In fact, sectioning off children in this way does just the opposite—it restricts their ability to practice interacting with a wide variety of people. So why do we worry about homeschooled children’s socialization?  The erroneous assumption is that the child will be homeschooled and will be at home, schooling in the house, all day every day, with no interactions with other people. Unless a family is remotely located in a desolate place away from any form of civilization, social isolation is highly unlikely. Every homeschooling family I know involves their children in daily life—going to the grocery store or the bank, running errands, volunteering in the community, or participating in sports, arts, or community classes. Within the homeschooled community, sports, arts, drama, co-op classes, etc., are usually sectioned by elementary, pre-teen, and teen groupings. This allows students to interact with a wider range of children, and the interactions usually enhance a child’s ability to interact well with a wider age-range of students. Additionally, being out in the community provides many opportunities for children to interact with people of all ages. When homeschooling groups plan field trips, there are sometimes constraints on the age range, depending upon the destination, but many times the trip is open to children of all ages. As an example, when our group went on a field trip to the Federal Reserve Bank, all ages of children attended. The tour and information were of interest to all of the children in one way or another. After the tour, our group dined at a nearby food court. The parents sat together to chat and the children all sat with each other, with kids of all ages talking and having fun with each other. When interacting with society, exposure to a wider variety of people makes for better overall socialization. Many homeschooling groups also have park days, game days, or play days that allow all of the children in the homeschooled community to come together and play. Usually such social opportunities last for two, three, or four hours. Our group used to have Friday afternoon “Park Day.”  After our morning studies, we would pack a picnic lunch, drive to the park, and spend the rest of the afternoon letting the kids run and play. Older kids would organize games and play with younger kids, which let them practice great leadership skills. The younger kids truly looked up to and enjoyed being included in games with the older kids.

The Republican Roosevelt wanted to fight plutocrats as well as anarchists. Their plunder of oil, coal, minerals, and timber on federal lands appalled him, in his role as the founder of America’s national parks. Corporate criminals, carving up public property for their private profit, paid bribes to politicians to protect their land rackets. Using thousand-dollar bills as weapons, they ransacked millions of acres of the last American frontiers. In 1905, a federal investigation, led in part by a scurrilous Secret Service agent named William J. Burns, had led to the indictment and conviction of Senator John H. Mitchell and Representative John H. Williamson of Oregon, both Republicans, for their roles in the pillage of the great forests of the Cascade Range. An Oregon newspaper editorial correctly asserted that Burns and his government investigators had used “the methods of Russian spies and detectives.” The senator died while his case was on appeal; the congressman’s conviction was overturned by the U.S. Supreme Court on grounds of “outrageous conduct,” including Burns’s brazen tampering with jurors and witnesses. Burns left the government and became a famous private eye; his skills at tapping telephones and bugging hotel rooms eventually won him a job as J. Edgar Hoover’s

Here is another weird example of the privileging of religion. On 21 February 2006 the United States Supreme Court ruled, in accordance with the Constitution, that a church in New Mexico should be exempt from the law, which everybody else has to obey, against the taking of hallucinogenic drugs. Faithful members of Centro Espirita Beneficiente Uniao do Vegetal believe that they can understand God only by drinking dimethyltryptamine. Note that it is sufficient that they believe that the drug enhances their understanding. They do not have to produce evidence. Conversely, there is plenty of evidence that cannabis eases the nausea and discomfort of cancer sufferers undergoing chemotherapy. Yet, again in accordance with the Constitution, the Supreme Court ruled in 2005 that all patients who use cannabis for medicinal purposes are vulnerable to federal prosecution (even in the minority of states where such specialist use is legalized). Religion, as ever, is the trump card. Imagine members of an art appreciation society pleading in court they they 'believe' they need a hallucinogenic drug in order to enhance their understanding of Impressionist or Surrealist paintings. Yet, when a church claims an equivalent need, it is backed by the highest court in the land. Such is the power of religion as a talisman.

On 21 February 2006 the United States Supreme Court ruled, in accordance with the Constitution, that a church in New Mexico should be exempt from the law, which everybody else has to obey, against the taking of hallucinogenic drugs.8 Faithful members of the Centro Espirita Beneficiente Uniao do Vegetal believe that they can understand God only by drinking hoasca tea, which contains the illegal hallucinogenic drug dimethyltryptamine. Note that it is sufficient that they believe that the drug enhances their understanding. They do not have to produce evidence. Conversely, there is plenty of evidence that cannabis eases the nausea and discomfort of cancer sufferers undergoing chemotherapy. Yet, again in accordance with the Constitution, the Supreme Court ruled in 2005 that all patients who use cannabis for medicinal purposes are vulnerable to federal prosecution (even in the minority of states where such specialist use is legalized). Religion, as ever, is the trump card. Imagine members of an art appreciation society pleading in court that they ‘believe’ they need a hallucinogenic drug in order to enhance their understanding of Impressionist or Surrealist paintings. Yet, when a church claims an equivalent need, it is backed by the highest court in the land. Such is the power of religion as a talisman.

Beginning in the fall of 2001, the U.S. military dropped flyers over Afghanistan offering bounties of between $5,000 and $25,000 for the names of men with ties to al Qaeda and the Taliban. “This is enough money to take care of your family, your village, your tribe, for the rest of your life,” one flyer read. (The average annual income in Afghanistan at the time was less than $300.) The flyers fell, Secretary of Defense Donald Rumsfeld said, “like snowflakes in December in Chicago.” (Unlike many in Bush’s inner circle, Rumsfeld was a veteran; he served as a navy pilot in the 1950s.)82 As hundreds of men were rounded up abroad, the Bush administration considered where to put them. Taking over the federal penitentiary at Leavenworth, Kansas, and reopening Alcatraz, closed since 1963, were both considered but rejected because, from Kansas or California, suspected terrorists would be able to appeal to American courts and under U.S. state and federal law. Diego Garcia, an island in the Indian Ocean, was rejected because it happened to be a British territory, and therefore subject to British law. In the end, the administration chose Guantánamo, a U.S. naval base on the southeastern end of Cuba. No part of either the United States or of Cuba, Guantánamo was one of the known world’s last no-man’s-lands. Bush administration lawyer John Yoo called it the “legal equivalent of outer space.

When the battle resumed in 1995, the Court’s target was an obscure federal statute that barred possession of guns near school buildings. Since every state had a similar law, the fate of the federal law, the Gun-Free School Zones Act, was of little moment. Nonetheless, the decision invalidating the statute, United States v. Lopez, ushered in the Rehnquist Court’s federalism revolution. Writing for the majority, Chief Justice Rehnquist said that to uphold the statute would be to blur the “distinction between what is truly national and what is truly local.” This analysis implied an end to the long period during which the Court permitted Congress to decide for itself whether the distinction between national and local mattered for any particular piece of legislation. The vote was 5 to 4, with the dissenters quick to point out the implications. Justice Souter warned that “it seems fair to ask whether the step taken by the Court today does anything but portend a return to the untenable jurisprudence from which the Court extricated itself almost sixty years ago.” There followed, in quick succession, a series of closely divided decisions that constricted congressional authority not only under the Commerce Clause but also under the Fourteenth Amendment. Section 5 of the Fourteenth Amendment gives Congress “the power to enforce, by appropriate legislation, the provisions of this article”—namely, the guarantees of due process and equal protection provided by the amendment’s Section 1.

According to Bartholomew, an important goal of St. Louis zoning was to prevent movement into 'finer residential districts . . . by colored people.' He noted that without a previous zoning law, such neighborhoods have become run-down, 'where values have depreciated, homes are either vacant or occupied by color people.' The survey Bartholomew supervised before drafting the zoning ordinance listed the race of each building's occupants. Bartholomew attempted to estimate where African Americans might encroach so the commission could respond with restrictions to control their spread. The St. Louis zoning ordinance was eventually adopted in 1919, two years after the Supreme Court's Buchanan ruling banned racial assignments; with no reference to race, the ordinance pretended to be in compliance. Guided by Bartholomew's survey, it designated land for future industrial development if it was in or adjacent to neighborhoods with substantial African American populations. Once such rules were in force, plan commission meetings were consumed with requests for variances. Race was frequently a factor. For example, on meeting in 1919 debated a proposal to reclassify a single-family property from first-residential to commercial because the area to the south had been 'invaded by negroes.' Bartholomew persuaded the commission members to deny the variance because, he said, keeping the first-residential designation would preserve homes in the area as unaffordable to African Americans and thus stop the encroachment. On other occasions, the commission changed an area's zoning from residential to industrial if African American families had begun to move into it. In 1927, violating its normal policy, the commission authorized a park and playground in an industrial, not residential, area in hopes that this would draw African American families to seek housing nearby. Similar decision making continued through the middle of the twentieth century. In a 1942 meeting, commissioners explained they were zoning an area in a commercial strip as multifamily because it could then 'develop into a favorable dwelling district for Colored people. In 1948, commissioners explained they were designating a U-shaped industrial zone to create a buffer between African Americans inside the U and whites outside. In addition to promoting segregation, zoning decisions contributed to degrading St. Louis's African American neighborhoods into slums. Not only were these neighborhoods zoned to permit industry, even polluting industry, but the plan commission permitted taverns, liquor stores, nightclubs, and houses of prostitution to open in African American neighborhoods but prohibited these as zoning violations in neighborhoods where whites lived. Residences in single-family districts could not legally be subdivided, but those in industrial districts could be, and with African Americans restricted from all but a few neighborhoods, rooming houses sprang up to accommodate the overcrowded population. Later in the twentieth century, when the Federal Housing Administration (FHA) developed the insure amortized mortgage as a way to promote homeownership nationwide, these zoning practices rendered African Americans ineligible for such mortgages because banks and the FHA considered the existence of nearby rooming houses, commercial development, or industry to create risk to the property value of single-family areas. Without such mortgages, the effective cost of African American housing was greater than that of similar housing in white neighborhoods, leaving owners with fewer resources for upkeep. African American homes were then more likely to deteriorate, reinforcing their neighborhoods' slum conditions.

In the U.S. Articles of Confederation, the federal government gave itself the exclusive right to regulate “the trade and managing all affairs with the Indians.” This power was repeated in the 1790 Trade and Intercourse Act, which further refined “trade” and “affairs” to include the purchase and sale of Indian land. The intent of these two pieces of legislation was clear. Whatever powers states were to have, those powers did not extend to Native peoples. Beginning in 1823, there would be three U.S. Supreme Court decisions—Johnson v. McIntosh, Cherokee v. Georgia, Worcester v. Georgia—that would confirm the powers that the U.S. government had unilaterally taken upon itself and spell out the legal arrangement that tribes were to be allowed. 1823. Johnson v. McIntosh. The court decided that private citizens could not purchase land directly from Indians. Since all land in the boundaries of America belonged to the federal government by right of discovery, Native people could sell their land only to the U.S. government. Indians had the right of occupancy, but they did not hold legal title to their lands. 1831. Cherokee v. Georgia. The State of Georgia attempted to extend state laws to the Cherokee nation. The Cherokee argued that they were a foreign nation and therefore not subject to the laws of Georgia. The court held that Indian tribes were not sovereign, independent nations but domestic, dependent nations. 1832. Worcester v. Georgia. This case was a follow-up to Cherokee v. Georgia. Having determined that the Cherokee were a domestic, dependent nation, the court settled the matter of jurisdiction, ruling that the responsibility to regulate relations with Native nations was the exclusive prerogative of Congress and the federal government. These three cases unilaterally redefined relationships between Whites and Indians in America. Native nations were no longer sovereign nations. Indians were reduced to the status of children and declared wards of the state. And with these decisions, all Indian land within America now belonged to the federal government. While these rulings had legal standing only in the United States, Canada would formalize an identical relationship with Native people a little later in 1876 with the passage of the Indian Act. Now it was official. Indians in all of North America were property.

Politicians are the only people in the world who create problems and then campaign against them. Have you ever wondered why, if both the Democrats and Republicans are against deficits, we have deficits? Have you ever wondered why if all politicians are against inflation and high taxes, we have inflation and high taxes? You and I don’t propose a federal budget. The president does. You and I don’t have Constitutional authority to vote on appropriations. The House of Representatives does. You and I don’t write the tax code. Congress does. You and I don’t set fiscal policy. Congress does. You and I don’t control monetary policy. The Federal Reserve Bank does. One hundred senators, 435 congressmen, one president and nine Supreme Court justices — 545 human beings out of 235 million — are directly, legally, morally and individually responsible for the domestic problems that plague this country. I excused the members of the Federal Reserve Board because that problem was created by the Congress. In 1913, Congress delegated its Constitutional duty to provide a sound currency to a federally chartered by private central bank. I exclude all of the special interests and lobbyists for a sound reason. They have no legal authority. They have no ability to coerce a senator, a congressman or a president to do one cotton-picking thing. I don’t care if they offer a politician $1 million in cash. The politician has the power to accept or reject it. No matter what the lobbyist promises, it is the legislators’ responsibility to determine how he votes. Don’t you see the con game that is played on the people by the politicians? Those 545 human beings spend much of their energy convincing you that what they did is not their fault. They cooperate in this common con regardless of party. What separates a politician from a normal human being is an excessive amount of gall. No normal human being would have the gall of Tip O’Neill, who stood up and criticized Ronald Reagan for creating deficits. The president can only propose a budget. He cannot force the Congress to accept it. The Constitution, which is the supreme law of the land, gives sole responsibility to the House of Representatives for originating appropriations and taxes. Those 545 people and they alone are responsible. They and they alone should be held accountable by the people who are their bosses — provided they have the gumption to manage their own employees.

Benjamin Franklin wrote little about race, but had a sense of racial loyalty. “[T]he Number of purely white People in the World is proportionably [sic] very small,” he observed. “ . . . I could wish their Numbers were increased.” James Madison, like Jefferson, believed the only solution to the problem of racial friction was to free the slaves and send them away. He proposed that the federal government sell off public lands in order to raise the money to buy the entire slave population and transport it overseas. He favored a Constitutional amendment to establish a colonization society to be run by the President. After two terms in office, Madison served as chief executive of the American Colonization Society, to which he devoted much time and energy. At the inaugural meeting of the society in 1816, Henry Clay described its purpose: to “rid our country of a useless and pernicious, if not dangerous portion of the population.” The following prominent Americans were not merely members but served as officers of the society: Andrew Jackson, Daniel Webster, Stephen Douglas, William Seward, Francis Scott Key, Winfield Scott, and two Chief Justices of the Supreme Court, John Marshall and Roger Taney. All opposed the presence of blacks in the United States and thought expatriation was the only long-term solution. James Monroe was such an ardent champion of colonization that the capital of Liberia is named Monrovia in gratitude for his efforts. As for Roger Taney, as chief justice he wrote in the Dred Scott decision of 1857 what may be the harshest federal government pronouncement on blacks ever written: Negroes were “beings of an inferior order, and altogether unfit to associate with the White race, either in social or political relations; and so far inferior that they have no rights which a White man is bound to respect.” Abraham Lincoln considered blacks to be—in his words—“a troublesome presence” in the United States. During the Lincoln-Douglas debates he expressed himself unambiguously: “I am not nor ever have been in favor of making voters or jurors of negroes, nor of qualifying them to hold office, nor to intermarry with white people; and I will say in addition to this that there is a physical difference between the white and black races which I believe will for ever forbid the two races living together on terms of social and political equality.” His opponent, Stephen Douglas, was even more outspoken, and made his position clear in the very first debate: “For one, I am opposed to negro citizenship in any form. I believe that this government was made on the white basis. I believe it was made by white men for the benefit of white men and their posterity forever, and I am in favor of confining the citizenship to white men—men of European birth and European descent, instead of conferring it upon negroes and Indians, and other inferior races.