D.K. Williams is a rare bird. He’s a lawyer who understands economics, cherishes freedom, and loves ideas. That’s why he’s part of the Speakeasy Ideas crew!
In his weekly podcast, THE LAW, D.K. judges what the courts say about the law according to the standards of the U.S. Constitution as well as the timeless principles of individual freedom, private property, and natural justice.
D.K. is available for teaching, consulting, inspiring, & public speaking. He’s quite good. Just send an email to [email protected] and we’ll make it happen.
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 upon the 115 year old Jacobson case that upheld a mandatory smallpox vaccination. The language used by the Court in Jacobson is frightening: “The possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order, and morals of the community.” We discuss where that standard leads.
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, concluded that firing someone from a job due to their homosexuality or transgender status is prohibited by that language.
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 their discretion slowly eroded until this case, decided earlier this year, officially killing off that discretion and an original part of the Constitution with it.
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 appointed by Democratic presidents. Was this a strictly partisan outcome?
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 authority. The U.S. Supreme Court, in a 7-2 decision, disagreed. They upheld the act. We discuss it.
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.
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 of Habeas Corpus, martial law, and the power of government action during “exigencies” like a war (or coronavirus outbreak). A very timely case from the Civil War era.
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 an unlawful arrest. Sometimes, even today, this case will be cited for that proposition. However, the common law rule has been changed by statute just about everywhere. Do not do what John Bad Elk did. His argument no longer holds up.
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. Criminal charges were never filed against Mr. Miller, yet the state intended to keep the cash it had confiscated pursuant to the Orwellian Newspeak term “civil asset forfeiture.”
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 ended in Mr. Johnson burning an American flag in front of Dallas City Hall. He was arrested and sentenced to one year in jai. The majority of the Court held this conviction was a violation of the First Amendment. The dissent, however, said the flag was such an important symbol, they would make an exception to the Constitution for it.
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 ordered to comply with a subpoena to produce recordings of conversations he had made in the Oval Office. Sixteen days after this decision, Nixon resigned.
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 Washington, in this case, to implement a minimum wage law for women. It was another step in the direction of the intrusive, bureaucratic, centrally planned regulatory state that now exists.
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 concept of judicial “standing.” What does they mean? Check out this week’s edition of The Law for the answer.
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 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 some thoughts for your consideration.
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 legislative and executive branches of the U.S. government. The Obama appointed federal judges rejected that unconstitutional request.
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 judges and, more importantly, explains what judges are not supposed to do. We discuss all of that, and more.