I have something special for you today.
This is a VIP-style article but for free. We here at Twitchy believe our VIP pieces are different than your usual fare so today we thought we would give you a free sample of what a VIP article looks like. And once you've made it to the end we have a massive savings CODE for you to use when signing up for Twitchy VIP!
And, not for nothing, this is also a piece designed to reach out to people more toward the political middle than your typical VIP member. It’s something you might want to share with a friend who isn’t sure who he or she will vote for in this election season. People like that aren’t as likely to read this behind a paywall.
You see, I believe this is one of the most important elections in our lifetimes. And I wanted to explain, in concrete detail, why I think this is the case and why it is important to prevent Kamala Harris from becoming president.
Because I have heard years of conspiracy theories that Trump would be the end of the Republic … all while I watched Democrats attack the pillars of our Republic in a serious and sustained fashion. But the way they were doing it was flying under the radar. They were doing it explicitly, but you had to know where to look to see them saying it. Sometimes you had to understand their code to see what they were actually saying. I am a proud "constitutional law geek" so I see it plain as day and I wanted to try to explain to all of you, in plain and easy-to-understand language, why we need to elect Trump because the Constitution isn’t safe in Kamala Harris’ hands.
I have talked about this issue before. A while back, I wrote a VIP piece called "Why You Should Be ‘Never Biden:’ The Supreme Court Edition." In that (paywalled) VIP piece, I talked about what the Democrats wanted to do to the Supreme Court. I explained how Democrats were only two Supreme Court appointments from a majority, and they were very likely to get that majority within the next presidential term. I talked about specific cases and how they might be overturned if Democrats got that majority. Finally, I explained how overturning those cases would subvert some of our most basic liberties.
That previous piece has aged … in an interesting way. I wrote it in January of this year when Trump had not yet sewn up the nomination, but the safe money was on him. And obviously, it looked like Joe Biden was going to be the nominee for the Democrats, although I always believed that they still might attempt to replace him. So, I hedged my bets. And there have been so many other things that have happened since January that bear on this subject, so I wanted to come back to this topic again and show you how, if anything, the case against Kamala Harris now, is stronger than it was against Biden back then.
That means I will recycle some of what I said before without specific attribution, but I will also be adding a great deal to it. But if you read the original, you won’t be reading the same piece twice.
So, let’s start with something basic:
I. Control of the Supreme Court Is on the Ballot
Let’s start with two stark facts: Currently, the oldest Supreme Court justice is Clarence Thomas at 76 years old. And the second oldest is Samuel Alito, at 74. Both are among the most conservative justices.
(The third oldest is Sotomayor at 70.)
I have a very simple premise: The older a Supreme Court justice is, the more likely he or she is to leave the Supreme Court, by death or retirement. And I will show you as I write this that if the oldest two justices leave and Kamala Harris gets to replace them with liberal justices, it will be a catastrophe for the Constitution.
But there is another way for a Supreme Court justice to leave the Court: If he or she is impeached and removed.
(‘Impeachment’ is just the formal charge—much like an indictment in a criminal case. You are only removed if you are convicted in the Senate.)
The test for judicial impeachment is much lower than it is for the impeachment of the officers of the executive branch. You might remember that Article II, Section 4 of the Constitution says that they can be impeached for ‘Treason, Bribery, or other high Crimes and Misdemeanors.’
Well, that is one impeachment clause and there is another. Article III, Section 1 says:
The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour …
That has been interpreted as sort of legal code for two concepts. First, it is interpreted to mean that federal judges serve ‘for life’—hence my constant joke that federal judges are already term limited because they can only serve one term. Second, that same language is interpreted as allowing for the possibility of impeachment and removal, if they fail to engage in ‘good behaviour’—a much broader test than that for the impeachment of a president. In other words, it is easier to impeach a federal judge than a president. Based on that interpretation, we have allowed judges to serve for life and allowed them to be impeached, pretty much from the beginning of the republic.
Meanwhile, Alito and Thomas are the two Supreme Court justices that the left hates the most (with Kavanaugh being a close third). The left has been doing everything they can to discredit those two justices, and potentially set them up for impeachment and removal. For instance, here’s where they went as far as to secretly record Justice Alito:
BREAKING: Justice Alito admits lack of impartiality with the Left in undercover audio
— Scott Dworkin (@funder) June 10, 2024
pic.twitter.com/zewNXW49GC
And for the record, I explained why that whole thing was a nothingburger, here. I think they hate Alito uniquely because he wrote the opinion in Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022) overturning Roe v. Wade, 410 U.S. 113 (1973).
As for Thomas, I am pretty sure he is hated because 1) he is easily the most Conservative member of the Supreme Court and 2) he is black. Democrats think that black people are obligated to think and vote the way they want them to. For instance, here’s Joe Biden demanding obedience:
FLASHBACK: Joe Biden tells Black Americans that “you ain’t Black!” if you don’t vote for him. pic.twitter.com/nadwBAZepa
— ZNO 🇺🇸 (@therealZNO) June 29, 2024
Joe Biden isn’t unique in that sentiment. His only ‘gaffe’ was telling us what Democrats actually think on the subject. Thomas angers them because they think he has to vote and think a certain way, and he doesn’t do what he is told.
(And contrary to what some people have claimed, Thomas was not simply a parrot of Antonin Scalia back when Scalia was alive. I won’t bore you with the details but while both men agreed a lot, there were specific times when Thomas would stake out a position that was different from Scalia, and Scalia would visibly come around to Thomas’ point of view. I don’t think either of them led the other, but if anyone was leading anyone, Thomas was leading Scalia.)
My point is that I think that if Democrats control the House and Senate, they very well might try to impeach them both and they might find enough squishy Republicans to remove them. For instance, I can almost guarantee that Mitt Romney will find some dumb reason to vote to remove them both. Alexandria Ocasio-Cortez has already introduced articles of impeachment for both of them in July, but naturally, those articles went absolutely nowhere because Republicans controlled the House. If Democrats have both houses of Congress anytime soon, I think they will try again. Still, I admit death or retirement seems more likely for those two justices than impeachment and removal.
And if Justices Aito and Thomas are removed, die or retire, and Kamala is president, then liberals on the Supreme Court will gain a majority. Right now, there are three liberals: Sotomayor, Kagan, and Jackson. Take away two conservatives and add two liberals and that is a 5-4 majority for the liberals.
But that’s not the only way that Democrats can get their way in the Supreme Court. They have also proposed a radical court-packing plan and Kamala Harris seems to have stealthily signed on to it.
II. The Threat of Court Packing and Other ‘Reforms’ Is on the Ballot
On July 29, 2024, several weeks after the Supreme Court ruled on Trump’s presidential immunity, Biden held a press conference and put out a ‘fact sheet’ laying out some reforms designed to counter that decision and prevent other Supreme Court decisions he didn’t like. You can read the 'fact sheet' at the link provided here:
So the man who is head of the executive branch and has been in Washington for 52 years is asking the legislative branch who has no term limits to impose them on the judicial branch. That’s weird. https://t.co/1Uoxxfhh0j
— Heidi (@HeidiWindham) July 29, 2024
This was eight days after Joe Biden had officially dropped out of the race and at a point in time when Kamala Harris was the presumptive Democratic nominee. So, the first question is, can we attribute any of this to her?
Well, aside from Kamala repeatedly saying she wouldn’t have done anything different from Joe Biden …
We told you. And now Kamala Harris has told you. She openly admits she would NOT have done anything differently than Joe Biden.
— Speaker Mike Johnson (@SpeakerJohnson) October 8, 2024
High prices for gas and groceries
Open borders
High crime
Endless wars
A Harris Administration is just 4 more years of the same failed policies. pic.twitter.com/w22OWmkSmK
… there is this passage in the ‘fact sheet:’
President Biden and Vice President Harris look forward to working with Congress and empowering the American people to prevent the abuse of Presidential power, restore faith in the Supreme Court, and strengthen the guardrails of democracy.
That shouldn’t be surprising. He had to get Harris on board. Under the Constitution, she can vote in the Senate when there is a tie, and control of the Senate has been very close. Because of that, she has been instrumental in getting Biden’s legislative priorities through Congress. For better or worse, she has been one of the most consequential vice presidents in American history because of this. His proposals are much harder to pass if she isn’t on board.
So, she owns this ‘fact sheet.’ And what is she signing onto? You can read it for yourself, but I will summarize it for you. They are asking for three things: 1) a constitutional amendment to reverse the Supreme Court’s immunity decision, 2) ‘term limits’ for Supreme Court justices, and 3) a binding code of ethics for the Supreme Court.
I won’t bother very much with the immunity amendment because I have already discussed why the Supreme Court’s decision makes sense, here, and this amendment will never be ratified, anyway. I will note briefly that the Supreme Court’s decision on immunity reduces the lawfare we are seeing now against Trump. And that lawfare against Trump is a cancer on this republic.
As for the other two reforms, while Biden and Harris say they are designed to protect the ‘guardrails of democracy’ they are actually designed to lower the protection of individual rights in the Constitution. These proposals are designed to undermine the independence of the Supreme Court, when an independent Supreme Court is itself one of the ‘guardrails of democracy.’
For instance, a binding code of ethics (if the Supreme Court didn’t strike it down), would compromise the Supreme Court’s independence. As I wrote previously:
The problem with an ethical code is that the code also would have independent actors telling the justices what they can and cannot do and even potentially disciplining justices for disobedience. Indeed, it would require justices to spend time away from the work of actually deciding cases in order to address ethics complaints. As it is, there are many more cases that deserve consideration each year than the Supreme Court has time to address. This creates the possibility that false and bad faith complaints could be used as a tactic to hamstring the Supreme Court.
And for that reason, a binding ethical code would be a violation of the principle of the separation of powers.
As for the so-called ‘term limits’ it’s worth taking a moment to point out that the so-called ‘fact sheet’ is misleading when it says this:
Congress approved term limits for the Presidency over 75 years ago, and President Biden believes they should do the same for the Supreme Court.
If they are trying to say that Congress was able to limit the President to two terms by legislation, that simply isn’t true. The Twenty-Second Amendment did that and nothing less than a constitutional amendment could have done that. Meanwhile, the Biden-Harris ‘fact sheet’ is noticeably not proposing a constitutional amendment to alter the term of Supreme Court justices.
Moving on, the ‘fact sheet’ also says that
President Biden supports a system in which the President would appoint a Justice every two years to spend eighteen years in active service on the Supreme Court.
The only proposal I am aware of that would fit that description is a bill drafted by Senator Whitehouse, which flew under the radar but if you read it, it is utterly horrifying. This person provides a link to it:
Constitutionality is not a concern; Article 3 requires life terms but current plans being floated involve a system where only the 9 most recently appointed justices hear non-original jurisdiction cases, the rest becoming "senior" (see proposed bill below)https://t.co/XUCXyWLfSl
— Arjun Panickssery (@panickssery) October 13, 2024
(Ignore Mr. Panickssery's commentary. He is wrong and you will see why shortly.)
And if you aren’t sure if Harris supports it, we can rely on what Senator Whitehouse has said, as reported in this New York Post article:
(ICYMI) Kamala Harris supports radical legislation to pack the Supreme Court, appoint new justice every 2 years, Democrat senator says https://t.co/yQGtlsujg5
— Larry Elder (@larryelder) September 9, 2024
From the article:
Vice President Kamala Harris has signaled her support for radical legislation that would allow a new Supreme Court justice to be appointed to the bench every two years, according to a Democratic senator.
‘They have not gone so far as to say, ‘We endorse your bill.’ They have said that your bills are precisely aligned with what we are talking about,’ Sen. Sheldon Whitehouse (D-R.I.) told The Dispatch last week when asked if the Harris campaign has voiced its support for legislation he proposed last October that would dramatically overhaul the high court.
Furthermore, as you will see, the way that bill works lines up almost exactly with the description in the ‘fact sheet.’
That bill, if it became law as it is written, would work like this. Every two years, starting in the first 120 days of a presidential term, a president would be allowed to appoint a new justice to the Supreme Court. Every time a new Supreme Court justice was appointed this way, then only the nine most recently appointed justices would decide cases on appeals, while any remaining justices would be sidelined. Those sidelined justices would be allowed to carry out their other duties as Supreme Court justices, but they wouldn’t be allowed to hear appeals any more.
How big a deal is it to take the justices off the appeals docket? Over ninety-nine percent of the time, when you hear about what the Supreme Court does, when you care about what it does, that is the Court deciding cases on appeal. The Supreme Court has decided on appeal that: It had the power of judicial review; that the National Bank was lawful; that the kidnapped Africans who fought for their freedom on the Amistad should be freed; that Dred Scott was not a citizen of the United States because he was black; that the first eight amendments in the Bill of Rights didn’t apply to the states and then later, that almost all of them did apply to the states; that segregation was legal and then later that it was illegal; that Japanese internment was legal; that children in school could be forced to salute the flag and then later that they couldn’t be forced to do that; that there was a right to an abortion, and then later that there wasn’t; and that the Second Amendment was an individual right—just to name a few questions it decided on appeal. Virtually every decision that you thought was important, that protected your rights or failed to protect them, virtually every decision most people could name, was done on appeals. Obviously, I don’t agree with all of those decisions—indeed, it is logically impossible to agree with every decision the Supreme Court ever made. But I listed even horrible decisions to drive home the fact that this work was important. It could uplift or devastate the lives of millions of Americans. Deciding such appeals is the most important part of a Supreme Court justice's job and it’s not even close.
(I’m not getting into it very much, here, but there are some very narrow categories of cases where the Supreme Court serves as a trial court, rather than an appellate court, and this law would still allow the 'sidelined' justices to sit in those cases.)
So, let’s lay out how this bill would work, in practical terms, and you will start to see how awful it is. Let’s imagine that Kamala does become president and somehow this bill becomes law before she is sworn in. That second part is unlikely but let’s play pretend. Under this bill, Kamala is allowed to appoint one new Supreme Court justice right off the bat, even though there is no vacancy. Furthermore, that means Clarence Thomas would no longer hear any appeals, if this bill becomes law (and it isn’t struck down). Only the most recently appointed nine justices would hear any appeals. Then, two years after her inauguration, Kamala would be allowed to appoint another justice and suddenly Chief Justice John Roberts would no longer be allowed to rule in appeals cases (remember, it goes in order of appointment, not age). If she managed to win re-election, Alito would be the next on the chopping block. I’m sure it is a giant coincidence that the first three justices who would be sidelined by this law would be conservatives. Funny how that works out.
And if you aren’t sure that Biden and Harris are referring to this plan in this ‘fact sheet,’ let’s notice another detail. They talk about each justice spending ‘eighteen years in active service on the Supreme Court.’ That would line up with how Senator Whitehouse’s proposal would effectively clean out every justice appointed to the Court’s appellate ‘bench’ every 18 years (by appointing new justices to hear appeals every two years—nine times two equaling eighteen).
Of course, all of this is egregiously unconstitutional. The notion that a lifetime appointment could be changed to an appointment to only some of the powers of a Supreme Court justice is facially ridiculous. Furthermore, the political aspect of this is made obvious by the fact that they are only doing this to Supreme Court justices and only to their power to hear appeals. They don’t have any problem with the lifetime appointments to the district or circuit courts, or with the more senior Supreme Court justices hearing cases that are not on appeal.
Of course, the Supreme Court can defend itself from this madness. As I pointed out when making fun of Ian Millhouse Milhiser …
Judicial review [as originally understood] is nothing more than the Supreme Court saying ‘we have an equal right to look at whether a law or executive action violates the Constitution and we have a right to refuse to go along with it, if we think it is unconstitutional.’
In that sense, judicial review can almost be understood as sort of judicial civil disobedience. And we might expect to see that kind of ‘civil disobedience’ approach if President Harris purported to appoint a new Supreme Court justice under this proposed law. The current members of the Supreme Court would simply refuse to seat her. (Let’s pretend it is a woman.) They could say that this new purported justice is no more properly appointed than if the President had failed to obtain the Senate’s consent and therefore, they would refuse to include her in the court. Roberts might literally order the Supreme Court’s security to exclude her from the building.
But I think that depends on finding a majority of justices willing to support that and it could easily create a constitutional crisis in the meantime. What if we have a situation where five justices say this new alleged justice is not legally appointed, and four current justices and this new appointee says that the appointment is valid? That would be five against five. Then maybe the four justices who want to seat this new appointment might do something extreme, such as refusing to show up at the Supreme Court. Currently under federal law, and under Senator Whitehouse’s bill, the Supreme Court can’t operate without a quorum of at least six justices, so that would bring the entire court to a halt. And who knows where the constitutional crisis would go from there.
Further, there is the danger of cascading problems. Imagine President Kamala was able to replace Thomas and Alito in her first year due to death or resignation, and then this bill became law just before she reached the end of her second year. Then in 2027, this law would purport to allow her to appoint another justice to replace Roberts on the appellate ‘bench.’ Thus, we would have five liberal justices appointed in the normal constitutional way, four conservative justices, and then this one justice appointed under the bill. So even if the four remaining conservative justices presented a united front, there would be a real danger that they would be outnumbered when trying to stop this unconstitutional appointment.
Incidentally, when Harris was asked recently if she supported court packing, this is what she said:
Last night Kamala Harris expressed support for court packing.
— James Lynch (@jameslynch32) October 24, 2024
PA voter: “Would you be in favor of expanding the Court to 12?”
Kamala: “There should be some kind of reform of the court.”
pic.twitter.com/ep0TAA29ur
And here is what she said when she was trying to get the nomination for president in 2020 (and failed to win a single primary or caucus):
Kamala has promised to pack the Supreme Court and remove justices like Clarence Thomas.
— Peter St Onge, Ph.D. (@profstonge) September 14, 2024
Which would turn the Supreme Court -- and the Constitution -- into a rubber stamp for Congress.
The debate moderators, of course, never brought it up. And mainstream media does everything… pic.twitter.com/AsFqJZYHeX
I read this as Harris being intentionally vague. For all her claims to believe in Democracy, she won’t tell the people what her actual stance is in clear and plain language so they can decide whether or not they support her. But I think the ‘fact sheet’ is her sneaky confession. Indeed, it is hard to understand her support for a plan where ‘the President would appoint a Justice every two years to spend eighteen years in active service on the Supreme Court’ unless you read it as a court-packing plan similar to, if not identical with, Senator Whitehouse’s bill.
But even you aren’t convinced that she is definitely going to go along with this bill—or maybe you just think it will never pass—she is doing something else that is dangerous to the Supreme Court's independence: She is letting the threat of court packing hang in the air.
As I have said before, this isn’t the first time Democrats have talked about packing the Supreme Court. President Franklin D. Roosevelt tried to get legislation through Congress that would pack the Supreme Court when his New Deal kept losing before it. FDR proposed to add six new Supreme Court justices—one for every justice who was over the age of seventy. Again, I am sure was a total coincidence that the justices that met that criteria were the among ones killing his New Deal. Funny how these things work out for Democrats, right? Their facially neutral court-packing plans always seem to help them the most.
And you might say, ‘but his proposal failed. So what?’ The problem is that it didn’t fail. Legal scholars pretty unanimously agree that it was successful in bullying the Supreme Court into compliance. In legal circles, it is generally agreed that in the same year the court-packing proposal was defeated, Justice Owen Roberts suddenly started voting to uphold major provisions of the New Deal. That gave the liberal justices on the Supreme Court at the time just enough votes to uphold the remaining parts of the New Deal. The common belief is that Owen Roberts did this in order to reduce anger at the Supreme Court so that proposals to pack the Court wouldn’t succeed. In legal circles, this is called ‘the switch in time, that saved nine’—meaning that it kept the Supreme Court at nine justices.
It was the classic tactic used by weaker children to keep bullies from beating them up: Give the bullies whatever they want. It is understandably human, but not very good when our Constitution is supposed to grant certain rights that are not to be violated. It is fair to draw a direct line between that successful act of bullying to this:
“If you have the feeling that something is wrong, don’t be afraid to speak up.” Fred Korematsu, born #OTD in 1919, was one of more than 110,000 people of Japanese descent forcibly "relocated" during WWII. He sued the US government for the violation of his rights—and lost.
— US Holocaust Museum (@HolocaustMuseum) January 30, 2023
Yes, six years later, Fred Korematsu brought his challenge to Japanese internment to the Supreme Court, arguing that the mere fact he was Japanese did not justify imprisonment. But by then, he was facing a court too timid to stand up to a wartime president and so he was told his detention was lawful in Korematsu v. United States, 323 U.S. 214 (1944). The Supreme Court was no longer functioning as a guardrail of democracy.
And that is the awful history that Democrats—including their standard-bearer, Kamala Harris—are very intentionally invoking. They don’t seem to connect the dots that I did. They cheer the fact that they successfully bullied the Supreme Court into compliance and want to do it again. But it doesn’t seem to occur to them that Supreme Court upheld Fred Korematsu’s imprisonment—a decision they now say was wrong—because they had successfully bullied the Supreme Court.
I’m not saying that Democrats plan to try to lock up an entire ethnicity or something like that. What I am saying is that they have this blind spot, caring only about power and never thinking of the danger posed by such power. That in the name of strengthening the guardrails of democracy, they are reducing them. Just recently, Kamala put out an ad suggesting that Trump would put Asian Americans in internment camps, even as she is trying to give herself the power to do such a thing. And even if Kamala Harris doesn’t abuse the power she is reaching for, who is to say what the next president might do, or the next?
Thus, that is another way that Kamala Harris can subvert the Constitution without appointing a single new justice—just bully the Supreme Court so thoroughly that when the next ‘Fred Korematsu’ comes to the Supreme Court showing the world that something that is happening to him is unconstitutional, a majority of the Supreme Court will not be willing to help him. A Supreme Court willing and able to stand up to the president and congress when they violate the Constitution is a crucial protection for individual rights and Senator Whitehouse and Vice President Harris are trying to undermine it.
So, either by appointment within the bounds of the Constitution, by court packing or the threat of court packing, Democrats might be able ‘tame’ the Supreme Court. And what will they do with that power? They will threaten our most precious rights, starting with the First Amendment.
III. The First Amendment Is on the Ballot
I believe after four years of rule by Harris, we have a very high chance of losing the First Amendment. Mind you, it will still be in the Constitution, but it will be reinterpreted so that it no longer does the things it is supposed to do. And you can see how they can subvert the First Amendment by looking at two specific cases.
A. Kamala Harris Could Force You to Say Things You Don’t Agree With
Putting aside the possibility of her successfully bullying a majority of the Supreme Court into submission (which is another way to get her way), if Kamala is only able to replace Thomas and Alito with liberal justices, they will have enough votes to force you to say things you don’t agree with.
That was the issue in 303 Creative LLC v. Elenis, 600 U.S. 570 (2023). You can read the decision, here:
...It is a victory for free speech. Three dissenting justices. https://t.co/jJc00UNq0A
— Jonathan Turley (@JonathanTurley) June 30, 2023
And you can read my prior coverage of that decision, here.
In that case, a woman (operating through a company she was the sole owner of) wanted to get into the business of creating websites for weddings. From the Supreme Court opinion:
Through her business, 303 Creative LLC, Lorie Smith offers website and graphic design, marketing advice, and social media management services. Recently, she decided to expand her offerings to include services for couples seeking websites for their weddings. As she envisions it, her websites will provide couples with text, graphic arts, and videos to ‘celebrate’ and ‘conve[y]’ the ‘details’ of their ‘unique love story.’ … The websites will discuss how the couple met, explain their backgrounds, families, and future plans, and provide information about their upcoming wedding. All of the text and graphics on these websites will be ‘original,’ ‘customized,’ and ‘tailored’ creations. … The websites will be ‘expressive in nature,’ designed ‘to communicate a particular message.’ … Viewers will know, too, ‘that the websites are [Ms. Smith's] original artwork,’ for the name of the company she owns and operates by herself will be displayed on every one.
(Citations omitted.) But because Colorado has a law that prohibits discrimination on the basis of sexual orientation in businesses, she was concerned she would be forced to make websites for gay weddings with that kind of unique and expressive content. The state agreed that she was willing to serve all customers, gay or straight, but she wouldn’t express every message that every person wanted to send. She objected religiously to gay weddings and didn’t want to be forced to promote them. And the Colorado Supreme Court—the same court that deceived the public in order to claim that Trump’s expression on January 6, 2021 was unlawful incitement—said she could be forced to make gay marriage websites.
Many people have mistakenly believed that this case was about freedom of religion. It wasn’t. The Supreme Court has long held that the clauses protecting freedom of expression—the free speech clause and the free press clause—protect the right to express all points of view, whether those viewpoints are rooted in faith or not. So, this case was about freedom of expression, not freedom of religion (although there is some overlap between those rights). And the Supreme Court has long and correctly ruled that the right to express yourself includes the right not to express yourself and the right to refuse to say something the government wants you to.
Mind you, the Supreme Court has allowed for limited instances of forced expression. They have said that in the context of commercial speech, the government can require disclosure of ‘purely factual and uncontroversial information.’ A classic example of this is the Federal Government forcing companies to put ‘Nutrition Facts’ on food containers, telling you about the ingredients included and the nutritional value of the food in question. This is allowed to be required under the First Amendment because the information is 1) uncontroversial and 2) factual, and 3) presented solely in the context of commercial speech. All three elements have to be there.
Now that you understand the rule, you see that the dissent in 303 Creative wanted to dangerously innovate First Amendment law. They wanted to say that Smith could be forced to write a website full of information that was neither strictly factual nor uncontroversial. It isn’t strictly factual, because love isn’t really a fact in the eyes of the law—it’s an opinion. It is controversial because it is literally the story of a relationship and impending marriage that Smith considered to be sinful. Indeed, the Supreme Court only legalized gay marriage nine years ago in Obergefell v. Hodges, 576 US 644 (2015).
And what does Kamala have to say about 303 Creative? You can read her official statement, here:
Statement by Vice President Harris on Supreme Court’s Ruling In 303 Creative v. Elenis https://t.co/0jGrv2HN2r via @whitehouse
— Dakota Fast (@DakotaWFast) July 3, 2023
I find this passage to be particularly horrifying:
All people deserve to live free from discrimination. When you walk into a restaurant, a hotel, or any business open to the public, you are entitled to be served free from discrimination. For years, our nation’s civil rights laws have helped to make that ideal more real. The Supreme Court’s ruling in 303 Creative v. Elenis departs from decades of jurisprudence by creating an exception to protections against discrimination in public accommodations. On the last day of Pride Month, the Supreme Court has paved the way for businesses across our nation to discriminate in the name of ‘free expression’—against the LGBTQI+ community, racial and religious minorities, the disability community, and women.
Her disdain for freedom of expression is so severe, she put it in scare quotes. Yeesh.
And for the record, I am disabled, Kamala, and you don’t speak for me. I support Ms. Smith’s freedom not to say something she doesn’t want to, even if it means people would be free to refuse to say what I want them to say. Keep my name out of your mouth when you try to suppress someone’s freedom of speech.
In any case, 303 Creative was a 6-3 decision. The six conservatives (I am counting Roberts as a conservative, even though he wavers sometimes) voted to uphold the right not to say something that you didn’t want to. The three liberals voted the opposite way.
And here’s the thing. If Kamala Harris got a 5-4 liberal majority, that majority wouldn’t hesitate to overturn that decision. As much as the left cries about precedent, the liberal justices never honor a precedent they disagree with. So, if Kamala Harris is able to appoint two Supreme Court justices, 303 Creative will be overturned, the government will be able to force you to say things you disagree with and the hell with your freedom of expression, scare quotes or not.
B. Kamala Would Make It a Crime to Make a Movie Criticizing a Presidential Candidate
As bad as the situation is with 303 Creative, there is another situation that is arguably worse, when it comes to the First Amendment. When leftists claim that Trump or some other Republican is a threat to democracy on Twitter/X, I often pose this question in response: ‘In 2016, which party nominated someone to be president who thought it should be a crime to make a movie criticizing a presidential candidate?’
Well, in context, you can probably guess the answer. It was the Democratic Party and the candidate they nominated was Hillary Clinton. I base that statement on the fact that she wanted to overturn Citizens United v. Federal Election Com'n (FEC), 558 U.S. 310 (2010).
And if I ask the same question about the 2024 election, the answer would still be the Democratic Party and their nominee—first Joe Biden and now Kamala Harris. It’s frankly been the answer in every election since the case was decided. Here is Harris verifying that she wants to overturn that decision (in the video).
Citizens United has fundamentally changed the foundation of our political system, giving the top 1% an unfair advantage in our elections. Let's get big money out of politics. pic.twitter.com/UOq1Bwxvoe
— Kamala Harris (@KamalaHarris) November 26, 2019
If you understand what Citizens United was really about, she is telling you that she wants the power to punish people for making a movie criticizing a presidential candidate. Heck, she wants to be able to punish this website for criticizing her.
But that probably isn’t what you have been told about Citizens United. Ever since the decision came out, there has been a concerted campaign to lie to the public about what the Supreme Court actually ruled. It’s bad enough that people repeat the lies as if they were certain their statements are true, not knowing they have been tricked. If you don’t believe what I am about to tell you about the decision, I link to the opinion here:
Well the answer is Hillary Clinton and she vowed to overturn citizens United which said it was not a crime to make a movie criticizing her. https://t.co/TsoAXIIUEv
— (((Aaron Walker))) (@AaronWorthing) March 28, 2023
and I’m willing to bet that’s not what you were told about the decision which is why I provided a link to it
Please, if you doubt what I am about to say about the decision, that’s fine. Feel free to follow the Reagan mantra of ‘trust but verify.’ After you are done reading this, read the decision for yourself and I believe you will see I am right.
The short version of the facts is that an advocacy corporation called Citizens United made a documentary called Hillary: The Movie. I have never seen it, but my understanding is that it is basically designed to convince people that Hillary Clinton should not be elected president. They released the movie during the primary campaign for the 2008 election season. However, the FEC claimed, based on the McCain-Feingold legislation, that it was a crime to make and release that movie too close to an election, and it was a crime to advertise for it, because it amounted to advocacy against a candidate for president.
Before the Supreme Court, the FEC argued successfully that McCain-Feingold made it a crime to make that movie and to advertise for it. But it was a pyrrhic victory because the Supreme Court then said because McCain-Feingold made such expressive acts a crime, that this portion of the law was unconstitutional. This passage from the opinion is damning:
The law before us is an outright ban, backed by criminal sanctions. Section 441b [of the McCain-Feingold legislation] makes it a felony for all corporations — including nonprofit advocacy corporations — either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election. Thus, the following acts would all be felonies under § 441b: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U.S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate's defense of free speech. These prohibitions are classic examples of censorship.
For this reason, the Supreme Court ruled that this part of the law was unconstitutional. So, when Democratic leaders like Kamala Harris tell you that they want to overturn Citizens United, make no mistake. This is what they mean. They want the power to censor such ads, books and websites. That is what they are telling you. They are just hoping most people won’t catch on to what that really means.
But many people have lied about the decision to obscure the horrifying fact that the Democratic leadership wants the power to censor ads, books and movies. So, I think it is worth taking a moment to take on some of those falsehoods.
1) Citizens United Didn’t Hold That Money is Speech, But Money Is Vital to Freedom of Expression
Let’s start with one of biggest lies told about Citizens United: That this decision held that money is speech. Here’s one of hundreds, probably thousands of examples:
The Citizens United decision established unlimited corporate political spending on the grounds that money is speech and free speech is guaranteed. Now that CISA is policing speech for Mis-/Dis-/Malinformation, can we revisit this?https://t.co/HLmdjCARyK pic.twitter.com/qsnFw7am6m
— recovering buzzkill (@MikeStillAwake) August 30, 2024
However, that principle was established long before Citizens United, in Buckley v. Valeo, 424 U.S. 1 (1976)—involving William F. Buckley. In that case, they recognized that in the modern media landscape of 1976, you really couldn’t communicate very effectively without money.
And here’s the thing. They were right … but the Buckley court did a terrible job making its argument. So let me take a moment to offer my own defense of this principle.
If I was writing the opinion in Buckley, I would point out that from literally the beginning of this republic, we have had a form of media that has relied on money: Printed materials. You know, books, pamphlets and newspapers … that sort of thing. Even the Declaration of Independence was immediately sent to a printer named John Dunlap. Printed materials were the first mass media and it ran on money.
I mean, it was theoretically possible for a person to literally make their own paper (grow the trees, chop them down, turn them into paper), make their own ink, make their own printing press, do their own reporting, writing and editing and then do their own distribution. But I am pretty sure literally no one ever did that.
No, I'm pretty sure every newspaper in history has been, at least to some degree, a group effort using money to buy necessities like the printing press itself, paper, ink and so on, and often using employees to help fill the paper with content and to distribute the paper itself—usually to sell for money. (And I am not even talking about reporters buying enough coffee to fill in Lake Michigan.) Even where the words of a single author are being published, like in a book or pamphlet, they weren’t making the ink and paper themselves. Money and commerce has always been essential to the press—as it is for all mass media. For that reason, freedom of expression requires the free flow of money.
And as a practical matter, freedom of the press was arguably more important than freedom of speech back when the First Amendment was ratified. Back then, freedom of speech was self-limited by the fact that one could only speak so loudly. Today we have technology that would allow me to whisper on a live stream, and be heard by billions of people all around the world. Back then, shout as loud as you want, but if you are speaking in South Carolina, you won’t be heard in New York City. Even approximately four score years later, during the run up to the Civil War, the only way a person living in Massachusetts might learn about what is being said in the debate between Abraham Lincoln and Stephen Douglas over in Illinois is if your local newspaper decided to cover that story. In fact, the primary reason the Lincoln-Douglas debates got so much attention was because the transatlantic telegraph cable had broken shortly beforehand. American newspapers were suddenly cut off from most international news and so they were desperate for something to fill their paper with and those debates sold newspapers.
That transatlantic cable was also a conduit for expression and it also ran on money.
Since then, we have seen the rise of other forms of mass communication. Radio, television, movies, and eventually the Internet—though that last one arose after Buckley. And all of them run on money.
It is fair to say that the Internet has had a good leveling effect. Think back to Rathergate, when an ‘Army of Davids’ took on the Goliath represented by 60 Minutes. CBS News spent millions of dollars to express themselves and was defeated by hundreds, maybe thousands of small bloggers and commenters with just their own computers, some cheap websites, and the truth on their side. The little guys won that one.
Yet, money was needed even for the Davids’ expression. Even the original commenter, who went by Buckhead, had to have a computer and Internet access—which costs money. The same can be said of any person who just likes to post pictures of their corgis on social media using a smartphone: That smartphone and Internet access costs money. So, while the Internet has made expression cheaper than ever before and made it easier for the little guy to take on the big guy, money is still important. Even the words you are reading right now on Twitchy required an infrastructure of employees to create and maintain the website and, not to put too fine a point on it, but I am not doing this for free, either. Nor do I think any rational person would expect me to.
So, while Citizens United didn’t establish that ‘money is speech,’ it is important to understand that the sentiment is correct: Limiting political expenditures effectively limits expression. This didn’t stop the Supreme Court from putting some limitations on how money and politics interact, mainly by limiting how much you could contribute to a candidates' campaign, but the Court didn’t let Congress have carte blanche over the topic, either.
And, in fact, McCain-Feingold flipped that concept on its head. The logic of the law was (paraphrase) ‘if money is speech, then speech is money. Since we can regulate money in politics to a degree, we can also limit political speech.’ That law represented a dangerous innovation against freedom of expression that the Supreme Court struck down—and rightfully so.
2) You Do Not Lose Your Right to Freedom of Expression Just Because You Work for a Corporation
Another myth is that Citizens United was the first case that held that corporations had a right to freedom of expression and that this was wrong. I will be honest, I don’t know off-hand when the Supreme Court allowed a corporation argue for the First Amendment rights on behalf of its employees for the first time. Off the top of my head, I know that it has been going on for at least 60 years, with New York Times Co. v. Sullivan, 376 U.S. 254 (1964)—a landmark First Amendment case—but my impression is it has been going on for much longer than that because even then it was taken as an unquestioned given, rather than an innovation.
So, while Citizens United wasn’t the first case to hold that corporations had a right to freedom of expression … let me take a moment to make the case that this is correct, too.
For anyone who says that the government should be able to censor ‘corporations,’ let me suggest this: Keep an ‘expression journal’ for a week. Every time you read something, listen to something, watch something, or even play a video game, and so on, note where it is coming from and look to see who takes responsibility for it. For instance, every television show you watch on network or cable TV or on a major streaming service is made by a corporation. This is even true of many YouTube Channels. For instance, I enjoy Corridor Crew’s weekly shows examining how movies and similar entertainment is made …
… but if you look under the hood, you realize that they are a corporation. The vast majority of movies you watch are made by corporations, too. I am honestly not sure if I have ever watched a full movie that wasn’t made by a corporation. The vast majority of music you might buy or stream is officially made and published by corporations (most bands incorporate, for instance). And, of course, any streaming service for video or music is run by a corporation as well as any social media platform you can name. The Supreme Court has said (correctly) that video games are a form of expression protected by the First Amendment, and the vast majority of video games are made by corporations. This is often true even if one guy is the ultimate creator. For instance, one guy named Markus Alexej Persson (a.k.a. ‘Notch’) created Minecraft. But even then, he did so under a corporation called Mojang. Virtually all books are published by corporations, as are most newspapers and news websites, including this one.
With the rise of blogs and later social media, it is fair to say that more than ever regular people who are not associated with a corporation are able to create mass media without creating or joining a corporation, but the majority of the media you consume is created by people who are on duty as an employee of a corporation. If you aren’t sure of that, spend a week making that entertainment journal as I suggested.
And corporations can rightfully try to influence elections. For instance, in 2004, two movies came out that I believe were designed to influence the presidential election. The easy one is Fahrenheit 9-11—Michael Moore pretty explicitly said he was rushing the movie to DVD just before the election because he hoped it would convince people to vote against George W. Bush.
But I also think Team America: World Police was also trying to influence the election. There is a central speech toward the end that seems to be the point of the whole movie and, frankly, I can’t quote it or show it to you on this Christian website. It is just too raunchy. But it makes a very gross (and funny) anatomical metaphor to make its point. To clean it up a bit, the basic idea is that there are wimps, jerks and monsters, and sometimes you need the jerks to take care of the monsters (like terrorists and dictators). And they don’t say anything directly about the election, but I really think the underlying message was ‘Vote for Bush, because he is not a wimp like Kerry. He is actually a jerk who will take care of the monsters.’
Now, you may or may not agree with all or some of what these two movies said, but would anyone really think the founders intended to let the Federal Government censor them?
Still I think the Supreme Court didn’t do a great job explaining themselves, again. I swear, sometimes I feel like the ‘Supreme Court whisperer.’ It's not so much that a corporation has free speech as that a corporation can only ‘speak’ through people and those people do not lose their right to freedom of expression because they happen to work for a corporation when they want to express themselves. In other words, just because Michael Moore is working for and being paid by a corporation doesn’t mean the Federal Government gets to prohibit him from expressing his opinion on an election, even when he is speaking for the company.
(Of course, if a corporation he is working for has a problem with what he is saying, that is a different issue.)
So, when you say corporations have no freedom of expression, you are saying that a great deal of the expression you consume on a daily basis can be censored.
And don’t forget that the vast majority of newspaper are corporations, too. I might not always like how newspapers behave—the New York Times was recently caught peddling apparently fake X-rays as evidence of Israeli atrocities, for instance—but there is no question that they are generally protected by the First Amendment. But the liberal dissenters in Citizens United had an answer to that.
3) Freedom of the Press Doesn’t Belong Solely to the Institutional Press.
Now it is time to turn to what the dissenters had to say, so that you have some idea what they would do to the First Amendment if they had the majority. The liberal dissenters argued, incredibly, that the people working for corporations did not have First Amendment rights. And how did they address the argument that this would lead to the censorship of newspapers? They claimed that the right to freedom of the press only belongs to the institutional press and therefore newspapers (including corporate newspapers) would be entitled to protection under the First Amendment. That would almost certainly protect Penguin Books and the New York Times, but what about some small-time blogger who has an opinion or perhaps original reporting that the media has been ignoring? Such a person seems unlikely to be protected under the dissent’s approach because you can’t plausibly call that person a member of the institutional press. Certainly, it would be hard to argue that a random citizen who recorded an encounter with the police and posted it on social media was part of the institutional press, so I guess those dissenters wouldn’t protect those people, either. That would be a frighteningly pinched reading of freedom of the press.
By comparison, the majority of the Supreme Court held in Citizens United that freedom of the press is simply the right to express oneself in written form. Any person who manages to put words on a piece of paper (or a computer screen) is protected under this view of freedom of the press. Are they right? Is freedom of the press simply the right to express yourself in written words, belonging to every citizen? Or is it something that only belongs to something defined as ‘the institutional press?’
Well, my favorite double entendre is to say we should apply Common Sense to this issue. A double entendre is technically nothing more a double meaning: I am referring both to the way of thinking that we call ‘common sense’ and the famous pamphlet by Thomas Paine called Common Sense that went a long way in convincing Americans that they needed to rebel against England. As in: ‘isn’t it just common sense to think that the founders believed that the First Amendment would have protected Thomas Paine’s Common Sense?’ Whether you think my double entendre is clever or not, I think the logic is solid. Any theory of the First Amendment that would leave Thomas Paine out in the cold is wrong.
The liberal dissenters’ interpretation fails this test. Whatever the definition of the ‘institutional press’ is, a pamphlet like the one Paine wrote can’t plausibly be claimed to be part of it. So, only the majority view would protect Paine and thus they are the only ones to pass the Common Sense test.
Of course, sharp-eyed readers might have noticed that I said this was the viewpoint of the liberal dissenters. They were the ones arguing for a reading of the First Amendment that would allow you to throw a filmmaker in prison for making a film criticizing a presidential candidate.
But there was one conservative dissenter. Clarence Thomas wrote a partial dissent because he felt that the Supreme Court had not gone far enough in protecting free speech:
I dissent from Part IV of the Court's opinion, however, because the Court's constitutional analysis does not go far enough. The disclosure, disclaimer, and reporting requirements in [McCain-Feingold] §§ 201 and 311 are also unconstitutional.
(Citations omitted.) He basically believed that the parts of McCain-Feingold that requires donors to political causes to be disclosed is also unconstitutional, and exposes such persons to boycotts, violence, threats of violence, and other intimidation tactics. While I tend to agree with Thomas on that, the fact that the majority in Citizens United didn’t go quite as hard core as I would have liked shouldn’t obscure the fact that if we had lost that case, it would have been a disaster for the First Amendment. I may wish that this conservative dissenter got his way, but I am extremely thankful that the liberal dissenters didn’t.
3) Other Points on Citizens United and Freedom of Expression in General
Let’s take a moment to clean up two other related points.
First, another common criticism of Citizens United is to say ‘technically the law didn’t regulate speech. It just regulated spending.’ This is fallacious. The law didn’t say that it was illegal for a corporation to spend money. Corporations spend money all the time. It didn’t say it was illegal for a corporation to spend money to send messages. Corporations also do that all the time, too, even when the corporation’s business is not related to expression. Capital One is a bank, not specifically in the business of making movies, books, or anything like that. But I am pretty sure everyone can hear Samuel L. Jackson in their head saying: ‘What’s in your wallet?’ as I write this.
So, a corporation isn’t banned under this law from spending money. It isn’t banned from spending that money to speak—or to hire someone to speak for it. It only prohibits corporations from spending money to speak, if the message supports or opposes a candidate for office. That isn’t really a restriction on spending, but rather a restriction on expression, as surely as if Congress said in 1797 that it was illegal to buy ink and paper if you were going to use it to criticize President John Adams.
Finally, a reasonable person might point at various things Trump has said on freedom of speech that are also wrong and often contrary to precedents that I support. That is unfortunate, but he is still a better choice than Kamala Harris because his Supreme Court justices can be depended on to do the right thing, and liberal justices can be depended on to subvert freedom of expression. My joke is that Trump is a bit like the famous 300 Spartans at Thermopylae. If you know the true history of the Spartans, you know they didn’t believe in very much freedom. But their actions had the effect of advancing freedom and democracy, mainly by helping to save Athens’ bacon. So, while Trump is deeply flawed when it comes to his understanding of freedom of speech (although he has gotten much better on this count in recent years), you can accurately say his Supreme Court appointments have saved the First Amendment.
Don’t believe me? Do the math.
In 2016, we started the year with nine justices: Thomas, Scalia, Alito, Roberts, Kennedy, Breyer, Sotomayor, Kagan and Ginsburg. Four of those justices were clear liberals: Breyer, Sotomayor, Kagan, and Ginsburg. Three would be what I would call ‘solid conservatives:’ Thomas, Scalia, and Alito. I would describe Chief Justice John Roberts as a conservative who can be intimidated into voting with the left much like Justice Owen Roberts before him. And Kennedy? I think he was an out-and-out libertarian, who wasn’t afraid to impose his views on the Constitution. So, he would vote to support the right to bear arms, but he would also claim that the Fourteenth Amendment, written by evangelical Christians, somehow included a right to gay marriage. To be very blunt, I don’t have a lot of respect for his jurisprudence because I think he was pretty nakedly political, but I did find him occasionally useful. As in, he sometimes voted the right way, even if he didn’t do it for the right reasons. Thankfully, he was also robust on the First Amendment.
And then in February of 2016, Scalia died and Obama tried to appoint Merrick Garland to the court. Thankfully, Republicans held strong and refused to give their consent to that appointment (as is their right under the Constitution), keeping the seat vacant throughout 2016. But if Hillary Clinton won, she would have put Merrick Garland on the Court. With a 5-4 liberal majority, Citizens United would have almost certainly been overturned. And by the time 303 Creative had come up, we would probably be talking about a 6-3 liberal majority (Kennedy would be replaced by a liberal, and liberals Ginsburg and Breyer would be swapped out for younger liberals) it would have been decided the opposite way.
That’s assuming Hillary won a second term. If she didn’t, a Republican president might have been able to replace Breyer with a conservative, but that would still leave us with a 5-4 liberal majority who would do the same damage.
And we would have lost the First Amendment in the process.
So, it is fair to criticize much of what Trump has said on the First Amendment, but I focus on what he did on the First Amendment. After four years of Trump, the First Amendment was more secure than ever, and after four years of Kamala, it might be in more danger than ever.
So, let’s sum this up on freedom of expression. If Harris becomes president and if she only replaces the oldest two justices, the Supreme Court will overturn Citizens United. That means every corporation would be subject to her censorship, unless it belongs to something called the ‘institutional press.’ That would be the vast majority of the expression you and I consume on a daily basis. And it also means that freedom of the press—freedom of the written word—would disappear for everyone but that same institutional press. The New York Times would not be censored, but a rando on Twitter/X could be, and so could a filmmaker. Likewise, her liberal majority would also overturn 303 Creative, which would mean that the government could now force you to say things against your will, even on controversial topics.
But that is not the only amendment endangered by a liberal majority…
IV. The Second Amendment Is on the Ballot
We have had a very good run with the Second Amendment so far this century, starting with District of Columbia v. Heller, 554 U.S. 570 (2008), but all of it could come crashing down if the liberals get a majority. Let’s review:
In Heller, the Supreme Court confronted Washington, D.C. territorial laws that essentially made it illegal for most ordinary citizens to own a handgun and keep it in the home for self-defense. The Supreme Court struck those laws down. In doing so, they rebuffed the theory, popular in academic circles but with no support in history or precedent, that the right to keep and bear arms found in the Second Amendment was actually a collective right. Instead, the Supreme Court held that the Second Amendment was an individual right. That decision was 5-4—four conservatives and one libertarian (Kennedy) against four liberals.
Two years later, we had McDonald v. Chicago, 561 U.S. 742 (2010). As I have explained before (and alluded to above), the Supreme Court has held that most parts of the first eight amendments in the Bill of Rights have been applied to the states through the Fourteenth Amendment, but not all of them. Confronted with state laws that purported to almost completely ban guns, the Court held for the first time that the Second Amendment limited the power of the states through the Fourteenth Amendment and struck that law down.
Alito eloquently argued that the founders of the Fourteenth Amendment specifically wanted former slaves and their Republican allies who were standing up to Democrat terrorist organizations such as the Ku Klux Klan to have guns for their own defense.
Thus, the Supreme Court held 5-4 that Chicago’s laws banning all firearms for most people were unconstitutional. No liberal justice joined the majority.
Next, and after Trump had appointed his three justices, we got New York State Rifle & Pistol Assn, Inc. v. Bruen, 142 S. Ct. 2111 (2022). That case involved a legislative scheme where you couldn’t carry a handgun outside your home unless the government decided you had a good reason for owning one and issued you a permit—and the government almost never believed your reason was good enough. This time, the vote was 6-3 that the government had to let most people carry a gun outside their home, but not because any liberal justice has seen the light. Instead, it was because one liberal justice was replaced with a conservative (Ginsburg for Barrett).
And in deciding that, the Supreme Court also upended the law of the Second Amendment in the wake of Heller and McDonald. Previously most circuit courts adopted a two-step analysis in dealing with Second Amendment challenges to state laws. First, they asked whether the regulation at issue had a historical analogue—in other words, is there historical precedent for this kind of limitation on the right to bear arms? Second, if there was no precedent, they would apply a ‘means-end’ test which meant the judges would uphold the restriction if they thought it was a good idea. And liberal lower court judges almost always found that any law restricting gun ownership was a good idea.
But Clarence ‘The Hammer’ Thomas wrote that ‘[d]espite the popularity of this two-step approach, it is one step too many.’ So basically, he cut out step two. Either the regulation has a historical precedent, or it is unconstitutional. Thus, with the stroke of his pen, he wiped out a ton of anti-gun precedents. It was glorious to watch.
How does Kamala Harris feel about how these decisions? Well, you can see for yourself. In Heller, she signed onto an ‘Amici Curiae Brief of District Attorneys in Support of Petitioners.’ An ‘amici curiae brief’ is a brief filed by someone who is not technically a party to the case but they are asking to speak to the court, anyway, claiming they will help the court reach a better decision. You can read the brief she signed onto, here:
Kamal supports the Second Amendment? According to this brief she filed with the Supreme Court . . . she doesn't.
— Ranten N. Raven (@Ranten_N_Raven) September 28, 2024
Believe the court filing she wasn't required to make, not her current lies.https://t.co/L1iM1iHnQN
And what she did was ask the Supreme Court to rule against Mr. Heller. Which means that she not only thinks that Heller was wrongly decided, but every single decision depending on Heller—McDonald and Bruen, and dozens of others in the lower courts—were all wrongly decided. If she had her way, the Second Amendment would be there, but it wouldn’t do much of anything.
Also, it is worth noting according to this site …
Kamala Harris On Guns: A Reporter's Guide - CRPA https://t.co/FPEcNOU6bd
— CapitalDistrictSCOPE (@CDSCOPE) October 20, 2024
… she supported a proposition that banned all handguns in San Francisco and that proposition was only stopped by a lawsuit. It was known as Proposition H. The fact she supported Proposition H doesn’t actually add much information for you, but it made me immediately think of this scene in Austin Powers in Goldmember:
(Maturity is overrated.)
But back to serious questions of constitutional law, if you are not sure that a liberal majority would overturn these decisions if they could, look at what Breyer wrote in a dissent joined by Ginsberg and Sotomayor. After claiming that there were historical errors in Heller, he wrote that
If history, and history alone, is what matters, why would the Court not now reconsider Heller in light of these more recently published historical views?
‘Reconsider’ is legal code speak for deciding whether to overturn a precedent. Just two years after Heller was decided, Breyer was ready to say Heller should be overturned—and based on what sounded like the writings of activist historians.
So, if Harris gets her Supreme Court majority, every single one of these decisions would be overturned in short order. Further, if liberal justices are in the majority, the next Second Amendment decision isn’t likely to end in victory for those who believe in the right to bear arms. I can’t guarantee you will like everything the Court will say on the Second Amendment if Trump gets a second term, but I can guarantee that if you believe ordinary citizens have a right to carry a gun in self-defense, you will like their rulings better than you would if there was a liberal majority.
Further, looking at the Supreme Court’s recent run on gun issues, we can also see something else important: The Supreme Court will restrain Trump’s worst instincts. The clearest example of this would be Garland v. Cargill, 144 S. Ct. 1613 (2024) which dealt with the bump stock ban. Many conservatives were disappointed in Trump when he had the ATF alter its regulations to declare bump stocks illegal after the massacre in Las Vegas. It wasn’t just because many saw it as an infringement on the Second Amendment, but also because he was basically changing the criminal law without going to Congress. In Cargill, the Supreme Court said that Trump exceeded his power by doing that. The vote was 6-3.
Now imagine a different scenario. Imagine that Hillary Clinton had beaten Trump in 2016. I ran the numbers earlier in this piece…
… and if the same vacancies opened up, Hillary would have been able to appoint enough justices to get a 6-3 majority by the end of her first term. If she won a second term (shiver) in 2020, and the same vacancies opened as they did for Biden, then she would maintain that 6-3 liberal majority. And even she didn't get a second term and a Republican won in 2020, that Republican would only have the opportunity to replace one liberal justice, Breyer, with a conservative. That would have left the liberals on the court with a 5-4 majority.
What is all of this leading to? Well, ask yourself how events would play out if Hillary was president from at least 2017-2021, and thus leaving us with at least a 5-4 liberal majority on the Supreme Court. In that scenario, Hillary would be on duty when the Las Vegas massacre happens. Is there any doubt that she would also have tried to enact the same bump stock ban through her ATF, if not something worse? Of course she would.
Now imagine that the Cargil case comes before the Supreme Court. It wouldn’t have been called Garland v. Cargill, because Merrick Garland would be on the Supreme Court, as part of a 6-3 or 5-4 liberal majority. But not only would the name be different, but the outcome would be different. In the real Cargill, a 6-3 conservative majority said that President Trump exceeded his power. But in our hypothetical, a liberal majority would probably be willing to let the president effectively change the criminal law to limit gun rights without the nicety of going through Congress.
My point is to say that if you are irritated that Trump tried to ban bump stocks, Hillary would have done it, too. But the difference is that she wouldn’t have appointed a Supreme Court that would be willing to stop her. That’s right, Trump’s appointees are so good that they make him better by restraining him. Trump is a deeply flawed human being, but he beats the alternative.
As this lawyer said, when talking about the First Amendment:
No matter who wins, us First Amendment lawyers are gonna have plenty of work.
— Marc J. Randazza 🇺🇸 🇮🇹 🇧🇷 (@marcorandazza) October 28, 2024
But, Trump-appointed judges will generally rule against a Republican if they violate the constitution.
Woke judges don't care about the constitution, there are "greater values at stake" https://t.co/JHpReAs56x
To sum things up, if Harris gets to replace Thomas and Alito with liberal justices, states would be given carte blanche to absolutely ban firearms and the Federal Government would be able to effectively ban ordinary Americans from having a handgun in their homes. Furthermore, the President could effectively change the criminal law without bothering to go to Congress—which a bigger problem than just its effect on gun rights. If you believe in the right to bear arms, you might not like every single decision that the Supreme Court has made recently on the Second Amendment. But you really won’t like what a liberal-dominated Supreme Court will do. To prevent that outcome, we need to defeat Kamala Harris.
V. Your Right to Vote for the Candidate of Your Choice Is on the Ballot
That headline might sound a bit extreme, but you have to go no further than an episode that happened earlier this year: That time when Democrats tried to remove Trump from the ballot. That is, Democrats tried to say that even if Trump got 99.99% of the popular vote and 100% of the votes in the Electoral College, they could still prevent him from being President.
Now, a reasonable reader might say, ‘Aaron, you brilliant and erudite lawyer, what are you worried about? Wasn’t that decision unanimous? Trump won, problem solved.’
Well, there are two reasons why this might still be an issue: First, the case that held that Trump had to be kept on the ballot, Trump v. Anderson, 144 S. Ct. 662 (2024), was not completely unanimous on all points. Second, because of that lack of unanimity, the issue might come up again in a different form. It might come up if Trump loses this year and tries to run again in 2028, or it might come up again with another candidate—possibly running for another office.
Previously, I dug pretty deeply into Anderson, so I will only briefly summarize it, here. Section 3 of the Fourteenth Amendment says the following:
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
The Colorado Supreme Court reasoned that this language meant that Trump was disqualified from even running for president on the following logic:
1. The riot on January 6, 2021 was an insurrection.
2. Trump incited that riot, causing that insurrection.
3. Therefore, Trump committed insurrection and could be disqualified under the Fourteenth Amendment.
Mind you, in order to argue point number two, they had to mislead the public. This means that the Colorado Supreme Court violated Trump’s rights under the First Amendment, in order to violate all of our right to vote for the candidate of our choice. But that was their logic.
Next, the Supreme Court intervened and all nine justices agreed that no state official, including the justices of the Colorado Supreme Court, had the power to remove a federal candidate from their ballot under the Fourteenth Amendment. So, Trump was back on the ballot in every state that attempted to remove him for that reason. And obviously, there is little danger that Kamala will be able to overturn that part of the ruling by appointing new justices, because it was unanimous on that point. She’d have to be able to appoint or persuade (or bully) five justices to get a different ruling on that point and that seems unlikely. So far, so good.
But the problem is that five of the conservative justices also held that only Congress can set up a procedure for removing Trump and only by legislation. The only law that allows for that wouldn’t apply to Trump and Democrats were unlikely to get new legislation passed, so that effectively ended these Fourteenth Amendment challenges.
And that’s where the disagreements began in Anderson. Justice Barrett filed a concurrence that basically said they shouldn’t bother to talk about that issue of other methods of enforcement at all, while refusing to indicate how she would rule. Meanwhile, the three liberals—Jackson, Sotomayor and Kagan—argued that other federal officials could do that as well without being 100% clear what specific officials could do it. Thus, if the three liberals got their way, we would have an unknown group of federal officials who could attempt to declare that Trump is not qualified to be president.
So, imagine this scenario. It is January 6, 2024. Trump has won and it is time for that victory to be certified … by who? Vice President Kamala Harris. But suddenly she says ‘I can’t certify that Trump won, because he is disqualified from holding this office under the Fourteenth Amendment!’
That sounds like a constitutional crisis, but it would be solved pretty quickly because the five Conservative justices have already told everyone how this would go. They have already told us she can’t do this. Only Congress can do it, through legislation that doesn’t apply to Trump. So, one of Trump’s lawyers runs to the district court and asks for an injunction, and the injunction will probably be issued immediately. Even if a district court refused to issue one or just dragged its feet … I will skip over the boring procedural stuff, but basically the Supreme Court would be able to intervene very quickly and since the rule is already agreed upon by five justices (and Barrett might join them), they could issue their ruling immediately. I doubt the opinion would take more than two pages. End of story, Trump gets sworn in on January 20 as usual.
Now, let’s try a different scenario. Imagine if Trump loses this year, and President Harris gets to replace Thomas and Alito. And then imagine Trump decides to run again in the 2028 election. Imagine for the sake of argument that he wins the Republican nomination and then wins the general election that November. Then we reach January 6, 2029, and Vice President Tim Walz is supposed to certify the results, but like in the last scenario, the Vice President says he can’t do that, because Trump is disqualified.
The current lineup of the Supreme Court makes it clear that whoever the vice president is, he or she can’t do that. But as I have been saying throughout this piece, we might be looking at a very different Supreme Court lineup. So, Trump’s lawyers run to the District Court—which would have to be the District Court of the District of Columbia—and says, ‘we want you to issue an injunction forcing Walz to certify the election.’
But maybe the judge is a liberal himself. (Let’s pretend he is a man.) And maybe he thinks Trump really is Hitler or something like that. And he notices that there is now a different lineup in the Supreme Court, and two of the five justices who said that Walz couldn’t do this are no longer on the bench. So maybe he decides to treat this as if the Supreme Court hadn’t ruled and told him what to do. Or maybe the D.C. Circuit Court intervenes and decides to treat the issue as an open question. And then very likely, the Supreme Court would have to get involved and, since liberals don’t respect precedents that they don’t agree with, now they will actually decide whether or not Trump is an insurrectionist and thus disqualified.
And all of this needs to happen within two weeks. January 20 is two weeks away from January 6. That is lightning speed for the Supreme Court. The Court has been known to act this quickly, but its really not the best way for it to operate. And the majority still might ultimately decide that Trump can be disqualified, effectively throwing away the votes of every person who voted for him in that hypothetical. Remember, in Anderson, the Supreme Court didn’t say Trump definitely wasn’t an insurrectionist, or that he definitely was one. They were just saying the correct procedure for declaring him one wasn’t used.
Or consider another scenario. Imagine if it is late 2027. Kamala has been president for nearly four years and is seeking reelection. She has replaced Thomas and Alito with two liberals, giving her a five liberal majority. Meanwhile Trump wants a rematch and is trying to win in the Republican primaries.
Suddenly, people start filing lawsuits trying to get Trump disqualified, again, but this time they were filed in Federal Courts. The five-justice conservative majority in Anderson said that Federal judges couldn’t disqualify on their own without Congressional authorization (and they’ll never get that). But now it is a liberal majority. Thus, many liberal judges in the lower courts hold that they can decide whether to disqualify Trump, believing that this new Supreme Court will back them up, and the next thing you know, you are seeing different decisions in different parts of the country. Maybe the Ninth Circuit says that Trump can’t run at all, so in the states controlled by that circuit—Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington—Trump has no chance to win the primary. Maybe a Federal judge in Maryland rules that Trump is allowed to stay on the ballot, while a Federal judge in Virginia rules that Trump is disqualified and takes him off the ballot for that state, and the Fourth Circuit—which covers both states—is dragging its feet on the appeals. Pretty soon it is a patchwork, one state being ordered to take Trump off the ballot while he is allowed to remain on the ballot in another state.
Maybe eventually the Supreme Court will intervene and somehow they will say Trump can stay on the ballot after all. But will they do so before the outcome of the Republican primaries are affected? You might very well end up in a situation where the Supreme Court says that Trump had a right to be on the ballot after all, but by then so many contradictory decisions had come out in the lower courts, that Trump lost the Republican nomination due to this judicial interference.
And in the ultimate nightmare scenario, this liberal majority on the Supreme Court could hold that he is not allowed to run at all. They would have to do violence both to the First Amendment and the Fourteenth in order to do so, but its not outside the realm of possibility.
Of course, you might think ‘if Trump loses this time, he probably won’t run again.’ I lean toward agreeing with that, but the problem is that this might happen to other Republicans and not just candidates for president. Section 3 of the Fourteenth Amendment applies to Congresscritters and various types of appointed officials, as well as state officials. Sure, the claim that a particular person is an insurrectionist might be nonsense, but that is no guarantee that he or she wouldn’t be found to be one, anyway. Then the same kind of chaos might ensue and your right to vote might be damaged in the process. Indeed, they might nullify your vote entirely.
And the only way to prevent that is to maintain that conservative majority on the Court. Or maybe we will get lucky and Trump will be able to strengthen it.
V. Your Right to Vote on Abortion Policy Is on the Ballot
Finally, is there any reason to doubt that if Kamala Harris becomes president and she gets to make those two appointments, she will try to restore Roe? While I don’t think she is particularly truthful in all that she says about the subject of abortion, there isn’t much question that abortion is her passion. If you watch her for a while, you will see that it is the subject that brings out the most energy from her. So, you can be sure that her Supreme Court appointments are going to be selected for their dedication to restoring Roe as the law of the land. She may be talking about passing a statute to restore Roe, but she would be just as happy reinstating it by judicial decision, that falsely claims that there is a right to abortion in the Constitution, after all.
And when the Supreme Court says something is a constitutional right, it is saying to us: ‘you can’t vote to change it, unless you amend the Constitution first.’ You might remember from civics class what the process is to amend the Constitution. You need two thirds of Congress or a convention of the states to propose an amendment and then, more or less, three quarters of the states to ratify it. I have more details at this link if you really want a refresher, but the important thing is, it is not easy to amend our Constitution and that is by design.
Or, you know … you can just appoint Supreme Court justices who will make something up. Leftists figured out a long time ago that this was the way to effectively amend the Constitution without going through the trouble of getting the consent of the people.
Because let’s all be honest about Roe and Dobbs. There is no right to abortion in the Constitution—not in the original Constitution or any of its amendments. Even if you feel there should be a right to abortion in the Constitution, you have to separate what you wish the Constitution said from what it actually says. The truth is the Federal Constitution doesn’t say anything about abortion, positively or negatively, which is why the issue of whether to regulate it and how to regulate it defaults to the states. So, what Roe represented was the Supreme Court pulling a right out of its collective hindquarters and effectively amending the Constitution, because seven of the justices on the Court at the time thought it was a good idea.
But the problem those Supreme Court justices didn’t understand was that this wasn’t their decision to make. It was a decision reserved to the people, to work out through the political process, in their own state governments. That's the reason why Roe should have been overturned, even if you agreed with the policy that this decision promoted. It was supposed to be decided by the American people. And taking that decision away from ‘We the People’ wasn’t republican values or democracy: It was an act of oligarchy.
When Roe was overturned, America became a slightly more democratic country. And the party that literally puts the word ‘Democratic’ right in their name, would love nothing more than to reinstate Roe and take that decision away from the American people, again. And that’s just one topic. The Supreme Court has already invented a lot of ‘constitutional’ rights that aren’t really in the Constitution, and every time they do, we become a less democratic country and move a little closer to an oligarchy of Supreme Court justices where the people are no longer trusted with the big decisions. The only way to prevent that creeping oligarchy is maintain that conservative majority.
Conclusion
In the end, our Constitution is a piece of paper. By itself, it does nothing. It just sits there. It doesn’t protect us from our government becoming oppressive. It takes men and women working together to make that Constitution work as designed.
And sometimes you have to really pay attention to protecting the Constitution as an issue when you cast your vote, and I think that this is one of those times.
I have shown you that Justices Alito and Thomas are the most likely to leave the Supreme Court in the next four years, either by retirement, death or impeachment and removal. Likewise, I have shown you strong evidence that Kamala Harris backs a radical court-packing plan. At the very least she plans to use the threat of court-packing to terrorize the Court into ruling the way she wants. Control of the Supreme Court is on the ballot. Court packing and the threat of court packing is on the ballot. The ability of the Supreme Court to stand up for the rights of ordinary Americans even when the president and/or Congress wants the government to crush them, is on the ballot.
And I have shown that if the democrats get control of the Supreme Court, the First and Second Amendment would be subverted. I showed you how liberal justices voted in lockstep to say that the government could make you say what you didn’t believe, and to make it a crime to make a movie criticizing a presidential candidate. I showed you how a liberal majority would demolish your ability to keep and bear arms. Imagine being told that you can’t have a gun to protect yourself and your family, and then being told that we need to ‘defund the police’—another policy Kamala has supported:
NEWLY SURFACED FOOTAGE of Kamala Harris supporting defunding the police. She's as leftist as they come. pic.twitter.com/Fb01wKQqr3
— Ian Miles Cheong (@stillgray) July 26, 2024
And if the liberal justices had their way in the disqualification case, they would have run the risk of complete chaos in our election system. They might have ultimately taken away our right to decide if Trump should or shouldn’t be president. Finally, they would take away your right to vote on important matters of public policy, such as abortion.
Ronald Reagan once talked about how fragile our system really was:
Freedom is never more than one generation away from extinction. We didn't pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same, or one day we will spend our sunset years telling our children and our children's children what it was once like in the United States where men were free.
There have been times in American history when it was up to We the People to go to the polls and protect our constitutional system. I hope I have convinced you that this is one of those times. I have already voted for Donald Trump because I believe that he is our best chance to preserve our Constitution and our Republic. I hope you will do the same.
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