In a U.S. Supreme Court opinion written between the passage of the 14th Amendment and when the Court started “incorporating” the Bill of Rights against the states, the Court upheld the conviction and $10 fine against Herman Presser. Presser had led a group of about 400 armed people calling themselves Lehr und Wehr Verein (The Teaching and Defense A…

What is the extent of government authority to “protect” the common good during a public health crisis? Earlier this year, the United States Supreme Court denied a California church’s request to stop the enforcement of certain public health rules that negatively affected the way the church conducted religious services. In doing so, the Court relied …

Earlier this year, the Supreme Court of the United States — in a 6-3 decision in the case of Bostock v. Clayton County — held that homosexual and transgender people are protected from employment discrimination under the Civil Rights Act of 1964. The Act prohibits discrimination against anyone “because of sex.” Neil Gorsuch, writing for the majority…

In the conclusion to the rogue elector saga we have been following, the Supreme Court applied what I refer to as the “Erosion Doctrine” to unanimously hold that states can turn their presidential electors into mere rubber stamps, thus depriving them of any discretion when selecting the president. Over two centuries, the power of electors to use the…

Earlier this year, SCOTUS overturned precedent by a 6-3 margin and held that states cannot convict someone of a criminal offense unless the jury verdict is unanimous. Evangelisto Ramos had been convicted by a 10-2 verdict and sentenced to life in prison without the possibility of parole in Louisiana. Ramos was granted a new trial by this decision. …

Earlier this month, the U.S. Supreme Court, in a controversial 5-4 decision, overruled a lower court order expanding Wisconsin statutory deadlines for submitting mail-in ballots due to the state government’s response to the Coronavirus. The five justice majority were all appointed by Republican presidents. The four justice minority were all appoint…

I could drink, legally, during my freshman year of college, but not my sophomore year. Then I was legal again my junior year. Why? Because of the National Minimum Drinking Age Act of 1984. What authority does Congress have to set the drinking age for the states? That’s what South Dakota wanted to know. South Dakota said Congress had no such authori…

Pirates! Blackbeard! Queen Anne’s Revenge! Sovereign immunity! Enumerated powers! And, sexiest of all, copyright law! Stare decisis and legislative history, and separation of powers, too. The U.S. Supreme Court, just two weeks ago, dealt with them all. Did I mention PIRATES?! Avast, check it out, matey. The post The Law episode 76: Allen v. Cooper …

During the Civil War, Lambdin Milligan, a citizen of Indiana, was arrested, tried, convicted, and sentenced by a military tribunal to hang for alleged anti-Union activities. He argued his conviction was illegal and sought a writ of Habeas Corpus for his release. A unanimous Supreme Court ruled in Milligan’s favor. This case discussed the suspension…

In 1899, in a story that could have been an episode of Gunsmoke or Bonanza, tribal police officer John Bad Elk shot and killed another tribal officer who was attempting to arrest him. Bad Elk was convicted and sentenced to be hanged. The U.S. Supreme Court awarded Bad Elk a new trial based on the common law argument that he had the right to resist …

In November, 2013, Robert Miller was driving through Wyoming on his way to his home in Illinois. During a traffic stop, a state trooper discovered $470,040 in cash in his car. And took it. Just last week, the Wyoming State Supreme Court ruled unanimously that the State of Wyoming had to return the cash it had taken from Mr. Miller during the stop. …

In this 5-4 1989 decision, the U.S. Supreme Court held that burning an American flag was speech the government could not punish pursuant to the First Amendment. Gregory Johnson, a member of the Revolutionary Communist Youth Brigade, participated in an anti-government protest during the 1984 Republican National Convention in Dallas, TX. The protest …

In this unanimous decision, the Supreme Court rejected President Nixon’s contention that all communication involving the Chief Executive of the United States—which just happened to be him—was immune from production in a criminal investigation. The case arose out of the investigation of the Watergate break-in and subsequent coverup. Nixon was ordere…

This is the U.S. Supreme Court case that ended the Lochner era of jurisprudence. It is allegedly the “switch in time that saved nine,” a reference to the Court abruptly changing course shortly after FDR announced his court packing plan. Justice Owen Roberts, in a span of a few months, changed his vote from a similar case and allowed the State of Wa…

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Just this week, a unanimous D.C. Circuit Court of Appeals threw out a lawsuit filed by over 200 members of Congress alleging Donald Trump is in violation of the Emoluments Clause of the Constitution. The court held the members of Congress did not have standing to bring the lawsuit. So this week, we discuss the Emoluments Clause itself and the conce…

This 5-4 Supreme Court decision—which struck down a state regulation that made it a crime to allow an employee to work more than 60 hours a week as a violation of an individual’s liberty to contract—is largely ridiculed in law schools today and by modern central planners. Find out why. The post The Law episode 68: Lochner v. NY appeared first on Sp…

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The death penalty is back in the news this week as the Colorado General Assembly considers a bill to ban the punishment. Nationwide, the practice is on the decline. While the concept of a death penalty is constitutional, is it a good idea? Should the government be trusted with the power of execution? What role does the jury really play? Here are so…

Just last week, in a 2-1 decision, the 9th Circuit correctly tossed out the “climate kids’” lawsuit seeking a judicial order requiring the executive and legislative branches to design and implement policy the plaintiffs had been unable to convince the political branches to enact. The plaintiffs sought no less than a judicial coup over the co-equal …

United States Supreme Court Associate Justice Neil Gorsuch’s book, A Republic, If You Can Keep It, attempts to explain to non-lawyers the importance of the constitutional framework of our federal government. And he succeeds. He discusses how the separation of powers, when followed, protects our rights and liberties. He clarifies the job of federal …

Just last month, the Fifth Circuit upheld a lower court ruling that the individual mandate portion of the Affordable Care Act (Obamacare) is no longer constitutional. Despite wailing from some who support the ACA, the 5th Circuit is correct. The Supreme Court, in 2012, upheld the mandate on the sole basis of Congress’s power to tax. That tax was lo…

The recent movie directed by Clint Eastwood, Richard Jewell, dramatizes the actual events surrounding a pipe bomb explosion during the 1996 Atlanta Olympics. When I first saw the trailer for the movie, I was yelling at the screen “DON’T TALK TO THE POLICE, RICHARD! SHUT UP!” Fortunately, my yelling was internal. In this podcast, I discuss the const…

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In this 5-4, 1997 decision, the U.S. Supreme Court declared certain key provisions of the Brady Handgun Violence Prevention Act unconstitutional. While the Brady Act was an attempt at federal gun control, this is not a Second Amendment case. It is a Tenth Amendment case. Justice Scalia, writing for the majority, held that Congress is constitutional…

he Township of Scott, Pennsylvania, ordered Mary Jane Knick to allow the public on her property because it contained a private cemetery. She opposed that directive. This Supreme Court case from earlier this year deals with two important topics: The Fifth Amendment Takings Clause and stare decisis. The 5-4 majority in this case allowed Knick to brin…

This is a special edition of The Law. We discussed the 10th Circuit opinion Baca v. Colorado (2019) back in episode 48 of The Law. Micheal Baca (yes, he spells his first name Micheal, not Michael) is the plaintiff in that case, and he graciously agreed to talk to me about how he became a Presidential Elector, why he did not vote for Hillary Clinton…

Everybody loves movies! In this 1948 Supreme Court case, the US Department of Justice brought an antitrust case against most of the major movie studios and movie distributors for anti-competitive practices. This case is another example of how the judiciary rewrites statutes passed by Congress. The post The Law episode 59: U.S. v. Paramount Pictures…

The Fourth Amendment prohibits federal agents from wrongfully arresting you and searching your house without a warrant. But what if they do? What if they enter your house without permission, ransack your house without a warrant, wrongfully handcuff you in front of your wife and child, take you away and subject you to a strip search? The post The La…

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Marvin Miller was convicted of violating California’s criminal obscenity law when he sent unsolicited mailings advertising the availability of some dirty books and a movie. The U.S. Supreme Court, in a 5-4 decision, upheld his conviction. This is one of several cases from this era where the Court struggled to define the limits of free speech under …

Birthright citizenship and the 14th Amendment have been in the news recently. President Trump does not believe birthright citizenship is required by the 14th Amendment. The U.S. Supreme Court discussed the issue in some detail in an 1898 case, U.S. v. Wong Kim Ark. The post The Law episode 56: U.S. v. Wong Kim Ark appeared first on Speakeasy Ideas.…

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This case, otherwise known as the Peaches’ House Party Case, deals with probable cause and qualified immunity of police officers. Justice Thomas wrote the opinion for a unanimous court overturning judgments of almost $1,000,000 awarded to partygoers for what the lower court found to be their unlawful arrest. Turns out, the plaintiffs had entered an…

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Impeachment has been in the news lately. In a 9-0 decision from 1993, Nixon v. U.S., the United States Supreme Court made it clear that impeachment by the House of Representatives and trial by the Senate are purely political processes. There is no judicial review of either process. The post The Law episode 54: Nixon v. U.S. appeared first on Speake…

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In the 2018 case, Janus v. AFSCME, the U.S. Supreme Court overturned one of its earlier decisions, the 1977 case, Abood v. Detroit Board of Ed. The 1977 Abood decision held that unions could deduct “agency fees” from union non-members without their consent. The Court in Janus, in a 5-4 decision, ended that practice as an unconstitutional violation …

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Almost 20 years ago, the presidential election between George W. Bush and Al Gore was decided by the results in Florida. Due to the failure of Florida to execute the election and ballot counting process in a competent manner, the United States Supreme Court had to address the Equal Protection issues raised by the state when it changed the process o…

In a dark stain on the Supreme Court’s jurisprudence, a 6-3 majority held that the fear of potential “espionage and sabotage” from American Citizens of Japanese heritage, during World War II, was enough to justify interning (a euphemism for “jailing”) Americans of Japanese descent. The post The Law episode 51: Korematsu v. United States appeared fi…

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Lower courts have come to opposite conclusions on whether or not states can bind their Electoral College voters to rubber stamp the popular vote or if electors can use their discretion and vote how they want. If this question is not decided by the U.S. Supreme Court by November 2020, our next Presidential election could result in a disputed Preside…

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Whether or not members of the Electoral College can use their discretion when voting, or if states can require electors to vote a certain way, remains in the news. Last week, in episode 48 of The Law, we discussed the 10th Circuit’s ruling on the issue in Baca v Colorado. This week, we discuss a recent Washington state Supreme Court ruling that dir…

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A “progressive” anti-electoral college group is funding lawsuits to actually enforce Art II, Section 1 of the Constitution and the 12th Amendment in order to free presidential electors from any state imposed restraints. A divided 10th Circuit panel ruled in their favor and have struck down Colorado’s statutory requirement that presidential electors…

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