Constitution, originalism and judicial activism – Sutherland Soapbox, 9/30/14

We_The_PeopleThis post is a transcript of a 4-minute weekly radio commentary aired on several Utah radio stations.

A couple weeks ago, Utah and the country celebrated Constitution Day. September 17 was designated to commemorate the signing of the Constitution by the delegates to the Philadelphia Convention in 1787.

The day is well chosen because the genius of a written constitution is as much in the fact that it’s written as in what it says. A government constrained by an accessible set of guidelines stands a real chance of actually being limited. The fact of its being written allows conscientious citizens and officers of government to return to the document to ensure that they are keeping faith with their foundational charter. It allows critics a standard by which to measure proposed actions and policies. If the Constitution is taken seriously it allows for what John Adams called, in the Massachusetts Constitution of 1780, “a government of laws and not of men.” This way of interpreting the Constitution is widely known as “originalism,” and is the view supported by conservative Supreme Court justices such as Antonin Scalia and Clarence Thomas.

The alternative is to allow a powerful individual or group of people to govern with no restraint but the bounds of their own wills. Unfortunately, this can occur even with a written constitution if the terms are treated not as expressions of objective standards that can be discerned from the original meaning of the words, but as empty vessels for government actors to pour their own preferred meanings into. This view is known as the “living Constitution,” which is often tied to the practice of judicial activism. Many view the Supreme Court’s left-leaning judges in this light.

When judges engage in judicial activism, they are essentially creating new law and altering the meaning of the Constitution. This is not the proper role for judges. If a change seems to be needed, the Constitution itself provides the means for making it — not by creative interpretation but by a formal amendment process, difficult enough to require deliberation and consensus but not so difficult as to create undue barriers to needed adjustment.

The even greater genius of the United States’ written constitution is that it is more concerned with structural matters than in asserting nebulous ideals for government officials to run with. The U.S. Constitution is dominated not by policy prohibitions but by structures for decision-making. Nearly the entire 1787 document lays out the responsibilities of the branches of government including crucial limitations on their powers. The Constitution does tell us how we can make decisions that affect our lives, not what all the right decisions will be. Read more

Elder Oaks urges mutual understanding on religious freedom issues

Elder Dallin H. Oaks speaks at Harvard Law School in 2010.

Elder Dallin H. Oaks speaks at Harvard Law School in 2010.

I have heard people rant and rave and bellow
That we’re done and we might as well be dead,
But I’m only a cockeyed optimist
And I can’t get it into my head

Elder Dallin H. Oaks quoted these lyrics from South Pacific last week in a speech at Utah Valley University, explaining that he is “optimistic in the long run” despite the current threats to religious freedom from our courts and popular culture.

Elder Oaks, a lawyer who served as a Utah Supreme Court justice before becoming a member of the Quorum of the Twelve Apostles of the LDS Church, said,

In this country we have a history of tolerant diversity — not perfect but mostly effective at allowing persons with competing visions to live together in peace. We all want to live together in happiness and harmony. We all want effective ways to resolve differences without anger or contention and with mutual understanding and accommodation.

There are points of disagreement between those who insist on free exercise of religion and those who feel threatened by it. Similar disagreements exist between those who insist on nondiscrimination and those who feel that some of its results threaten their religious liberty. There are no winners in such disagreements. Whatever the outcome in one particular case, other disagreements persist, and we are all losers from the atmosphere of anger and contention. In this circumstance of contending religious rights and civil rights, all parties need to learn to live together in a community of goodwill, patience, and understanding. …

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How Judge Shelby got the 14th Amendment wrong

This post is a transcript of a 4-minute weekly radio commentary aired on several Utah radio stations.

scalesThe 14th Amendment to the United States Constitution has been at the epicenter of most controversial court decisions over the past 40 years. Few people understand it even as many people invoke ideas such as “due process” and “equal protection” in support of their causes. The recent Judge Shelby decision on same-sex marriage in Utah is just one more example.

There are three main schools of thought regarding the 14th Amendment. The first school of thought, represented by Supreme Court Justice Anthony Scalia, is “original intent.” This school of thought holds that the 14th Amendment was adopted in 1868 with specific application addressing slavery – and that terms such as due process and equal protection were intended at that time to be limited to legal proceedings such as contracts and court cases.

This school of thought relies heavily on the intent of the legislative bodies at the time laws were adopted. It looks to the meaning and intent of the sponsors of the laws. Permitting judges to interpret those legislative purposes and meanings would be a violation of judicial jurisdiction. In other words, this school of thought holds that judges shall not legislate from the bench.

A second school of thought – a modern progressive school – holds that terms such as due process and equal protection in the 14th Amendment have substantive meaning not simply procedural application. But this progressive school takes it a step further by using its own ideologies to define the substantive meaning. Supreme Court Justice Anthony Kennedy and our own Judge Shelby think in these terms. This school of thought is perfectly comfortable, indeed legally and morally justified in their own minds, to legislate from the bench and substitute their own personal morals for the voice of the people.

They say, “Look, society got slavery wrong. It got abortion wrong. And now it got same-sex marriage wrong – we’re simply fixing what society got wrong.” And then we get government by judiciary.

There’s a third school of thought that also believes in substantive due process but is not driven by ideology.

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Bright, principled Sen. Lee makes the establishment cringe

Photo: Hannibal Poenaru

There’s a lot of hostility toward Mike Lee from the the Washington and Utah Establishment. (Photo: Hannibal Poenaru)

The following post is a transcript of a 4-minute weekly radio commentary aired on several Utah radio stations.

Just when I complimented my friends at The Salt Lake Tribune for being authentic for owning the cause of anything other than Mormon and Republican in Utah, they have to go and act like their journalistic editorial standards trump their politics – which is, of course, nonsense. When the Media Research Center in Washington, D.C., cited dozens of reports and editorials issued by the Tribune painting Utah Senator Mike Lee negatively throughout the drama over the shutdown of the federal government, the Tribune balked.

But why take umbrage? The Tribune editorial team has no affection for Senator Lee’s politics – everyone knows it. Is it likely that its editorial tone might influence the type of stories the Tribune produces about Senator Lee? Of course! I’m not questioning their reporting. I’m just saying that it is ridiculous for the Tribune to act like the stories they choose to focus on don’t project its bias. Well, if the Tribune thinks the news is a crazy Utah senator shutting down the government, that’s what its news will be – and you won’t read other reports in its pages about how the Democrats gamed the whole thing.

But there’s more to the attacks on Mike Lee than just whatever the Tribune chooses to report.

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Is our 226-year-old Constitution in crisis?

constitutionsigningThe following post is a transcript of a 4-minute weekly radio commentary aired on several Utah radio stations.

This week, specifically September 17, marks the 226th anniversary of the United States Constitution. While our Declaration of Independence is the heart and soul of this nation, the Constitution is our business model, and every business model lives or dies on our ability to properly and effectively execute the plan. So, how are we doing?

One key element of the Constitution is its separation of powers – meaning how we provide for a system of checks and balances inherent in three branches of government. The Executive branch was not empowered to do what was left to Congress and the courts. Each branch of government has its proper role and function. But that is always easier said than done. Think of the division of labor in your own homes.

While that analogy isn’t exact, it is guiding as we reflect on the separation of powers. When one branch of government abdicates its role or functions, we shouldn’t be surprised when another branch assumes jurisdiction. War powers come to mind. Of course, the assumption of power outside of proper jurisdictions can be simply political – recent Supreme Court rulings also come to mind.

But, all in all, the separation of powers in our Constitution still has legs. But what about federalism? Our Constitution clearly outlines the enumerated powers of the federal government and goes on to state that powers not enumerated are left to the states and the people. Here we’re not doing so well.

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Some habits are hard to break

Wait, what?

Wait, what do I need to understand?

The Salt Lake Tribune reported recently on the legal answer filed in the federal lawsuit challenging Utah’s marriage laws. It seems that in response to the filing, an activist group brought a copy of the Constitution to the attorney general’s office to draw attention to their belief that the venerable document requires Utah to change its marriage laws.

A passage in the story is, inadvertently, amusing:

Valerie Larabee, executive director, and Nikki Boyer, board president, said they were following one of the rules from Stephen Covey’s The 7 Habits of Highly Effective People: Seek to understand.

“We don’t understand and hope to,” Larabee said. “Our intention is on having the [lesgian, gay, bisexual and transgender, or LGBT] community voice heard.”

Those who’ve read the book will remember that the habit (No. 5) is actually: “Seek first to understand, then to be understood.” The sequence, of course, is the point.

The marriage critics have adopted a habit that’s much easier to follow: first get your voice heard and “hope” to understand the other position.

This actually seems emblematic of the redefinition effort. Those who freely charge that marriage laws can only be explained by atavistic hatred appear to have spent little or no time trying to understand why the male-female understanding is virtually a human universal (though even a cursory examination of history would give some clues).

It’s too bad someone in the office Tuesday didn’t hand the copy of the Constitution back and ask the protesters to underline the part that allows the federal courts to tell the state how to define marriage.

Responsible citizens, gun rights and the 2nd Amendment


Text of Paul Mero’s remarks, as prepared, at the KVEL Radio 2nd Amendment Rally in Vernal on Aug. 10, 2013:

I mentioned to our host that me sharing thoughts with you about the Second Amendment is like a student driver regaling Mario Andretti about what it’s like to drive a car. To help us bond, I can share with you that when I was 14 years old my friend, Dennis Halsey, shot me in the leg with my own Crossman pellet gun. Mom was against me buying it with my own hard-earned money – she told me someone would get hurt – so Dennis and I rushed home to fix me up before Mom got home from work. I was fortunate that we were using BBs and not pellets that day. I had a heck of time getting the BB out of my thigh. It was in there deep. I told Dennis to go get mom’s bottle of Scotch because I could tell I was going to be in need of some major disinfectant. Sure enough, after about 10 minutes of massaging that BB out of there, it popped right out.

My only other significant gun story happened 20 years later. I worked on Capitol Hill from 1987 to 1997. In 1994, you might recall, Congress passed the “crime bill” that included the “assault weapons” ban. I really hadn’t had a pressing desire to own a gun before that, but as soon as the House passed the first iteration of the bill in May, I and some friends drove to a little gun shop out on the northern neck of Virginia and I bought one of the banned weapons – a TEC-9 and an extended magazine.

I’ve often thought about what I was feeling at the time and since then about that purchase. Certainly, I felt offended enough to go buy the gun. I thought to myself, “Really? The federal government is going to tell me what gun I can or cannot own? Well, we’ll see about that!” As a side note, it’s interesting that the TEC-9 used in a couple of horrible shootings, such as at Columbine, wasn’t even the model that was banned – it was a modified TEC-9 not even covered by the ban. That’s how idiotic these gun bans can get – the federal government prefers to ban guns that look dangerous rather than guns that really are in the hands of crazy people.

I kept that pistol on the shelf in my bedroom closet for years. While I took it out to clean it, I rarely shot it. My lack of interest in it caused me to reflect why I still owned it and this one thought came back to me time and again: I owned that gun out of principle and the principle is that I’m a responsible, law-abiding citizen and, in a free society, responsible citizens have rights.

And this is the message I’d like to share: responsible citizens have rights; irresponsible citizens have diminished rights – and a free society requires us to be responsible (our Founding Fathers called it “virtuous”).

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Government’s stalking of media is outrageous and creepy

CCTV_surveillance_camera.svgAs a former journalist who spent 20 years in the newsroom of a daily paper, I have watched with horror the news about the Justice Department snooping into the Associated Press’s records and conducting surveillance on Fox News correspondent James Rosen.

For defenders of a free press, it’s creepy, like finding Gollum has been poking around in your underwear drawer.

Watchdog journalism – reporting that keeps a sharp eye on government and large organizations – is a bedrock principle for those in the field, and the First Amendment is supposed to give media the freedom to do just that.

Here’s what, a project of the Pew Research Center, has to say about it:

Journalism has an unusual capacity to serve as watchdog over those whose power and position most affect citizens. The Founders recognized this to be a rampart against despotism when they ensured an independent press; courts have affirmed it; citizens rely on it.

But financially speaking, it’s been a tough few years for watchdog journalists, particularly newspapers (aka “legacy media”). Fewer reporters and editors mean fewer investigative stories, fewer eyes on the government. (I was among many journalists laid off in the past few years.)

And too busy wading in the shallows of pop culture, much of the public shows a depressing disinclination to support expensive, time-consuming investigative journalism that dives deep into the murk.

Has the public – not to mention the Justice Department! – forgotten the function and importance of the free press? Is the government a little too eager to put an unconstitutional leash on the wounded watchdog?

Watch out – it still bites. Read more

May 8: A big day for Utah in 1895


Salt Lake City’s Main Street in the 1890s.

Wednesday, May 8, 1895, was the last formal day of the Utah Constitutional Convention.

Unlike the lawyer-dominated Philadelphia Convention, the top occupation of Utah delegates was farming, though lawyers were certainly represented. The president of the convention was John Henry Smith, and prominent delegates included Thomas F. Kearns, who would later be a U.S. senator and owner of The Salt Lake Tribune (and donor of the Governor’s Mansion), and Orson F. Whitney, who would later be a member of the Quorum of the Twelve Apostles of The Church of Jesus Christ of Latter-day Saints.

There were 97 delegates to the convention, 49 Republican and 48 Democrat. A full 37 had been born outside the United States. Only 28 had been born in Utah.

The Utah Constitution, like other state constitutions, typically gets much less attention than it deserves. This is a problem because under the system adopted by the Framers of the United States Constitution, states, rather than national government entities, were intended to have the most direct interaction with citizens.

The first application for statehood of what would become the Utah Territory was made in 1849, two years after the Mormon pioneers entered the Salt Lake Valley. Unsuccessful applications were made five more times over the next four decades. Community leaders in the territory knew immediately (and would have that knowledge confirmed repeatedly over the years) that statehood was the way to protect local autonomy. Read more

What makes for reasonable gun regulation?

Listen to the audio here:


Shooting_range_GlockThe following post is a transcript of a 4-minute weekly radio commentary aired on several Utah radio stations.

I’ve possessed a concealed carry permit for over five years now. I believe in the right to bear arms and I’d use a handgun or any weapon to protect me and my loved ones. I don’t believe I ought to wait for local police to protect me and what’s mine.

I’ve owned one gun in my life so far – a Tech-9, officially labeled an “assault rifle” by Congress when I purchased it back in the mid-’90s. I worked for Congress at the time and I remember when the House of Representatives voted to ban “assault weapons.” It upset my sensibilities so much that I drove out to rural Virginia and bought the Tech-9, knowing perfectly well that my purchase would be protected by any “grandfathering” of so-called assault weapons not yet banned by the United States Senate and signed into law by the president.

I didn’t need a Tech-9 to protect my home, though it clearly does that. That Tech-9 represents my right to bear arms. Read more