Wednesday, March 21, 2018
Is welfare constitutional? I do not believe so, but this is not easy to answer since past precedent make it difficult to do so. American history and tradition to help the poor and those who are unable to take care of themselves was done through charities and local religious groups. This remained the predominate method of dealing with poverty until the Great Depression and FDR’s New Deal in the 1930s and 1940s. FDR successfully used the general welfare clauses of the Constitution to have the Supreme Court rule that social security was Constitutional in Helvering v. Davis (1937). The General Welfare clauses in the constitution read as follows: The Preamble: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” Article I Section 8: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States” The following are the definitions for General and Welfare: “General. 1: involving or applicable to the whole. 2: involving, relating to, or applicable to every member of a class, kind or group.” “Welfare. 1: the state of doing well, esp. in respect to good fortune, happiness, well-being or prosperity.” Thus, General Welfare means that Congress can pass legislation to carry out its enumerated powers to promote the good of all persons. Interestingly, in section 8 it means that Congress can pass legislation to carry out its enumerated powers to promote the good for all states within the Union (notice it refers to the United States not individual people). This concurs with Hamilton’s view of the constitution in Federalist 81: “The United States, in their united or collective capacity, are the OBJECT to which all general provisions in the Constitution must necessarily be construed to refer.” Or Madison’s view in Federalist 45: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part; be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people; and the internal order, improvement, and prosperity of the State.” What does this mean? First, since Social Security is not an enumerated power, this type of program authority falls to the States via the Tenth Amendment. Secondly, General Welfare in the constitution does not apply to individuals but to the States. Justice Story’s commentary in 1833 was used to uphold the Social Security law, but he even said that the federal government had no reason to meddle in “systems of education, the poor laws, or the road laws, of the states.” In other words, Social Security was unconstitutional in 1833 and obviously the FDR Court misinterpreted the meaning of “General Welfare”. In many regards, Social Security is not considered welfare, but an insurance policy since Americans pay into the system. The same can be said of unemployment and Medicare. However, today, since most Americans are taking much more out of social security and Medicare than they ever put into the program (including interest), it is welfare because it is a taking.
Saturday, March 17, 2018
It is our First Amendment right to associate with whomever we choose. But like every right, freedom of association is not unlimited and can be regulated (although there is a lot of hypocrisy in the Court’s decisions). One such regulation is the mandatory disclosure of group, club, or organization memberships. The first big membership disclosure case was NAACP v. Alabama in 1958. In that case, the Court held that mandatory disclosure of NAACP members violated the First Amendment. In this case, the Court understood that making the names of NAACP members public, they would face harassment, racism, and even potentially criminal acts. Of course, members of clubs, organizations, and groups may forfeit their First Amendment rights when they perform activities in public, but that should be up to the individual if they want to forfeit that right. On the flip side, the Court would conversely have to protect members of communist or socialist organizations as well as Ku Klux Klan members (KKK members can also be threatened and even face violence). Freedom of association was also put to the test in the high Court to deal with employee unions. In Abood v. Detroit Board of Education (1977) and Knox v. SEIU (2012) the Court held that unions can charge non-union members fees since non-members also benefit from the labor contracts bargained by unions. However, unions cannot charge non-members fees that are used for political purposes. In other cases, the Court has held that groups should be forced to allow memberships to females (Roberts v. Jaycees, 1984) while on the other hand, the Court held that the Boy Scouts failure to admit gay scoutmasters was constitutional (Dale v. Boy Scouts, 2006). The one area where membership disclosure is not protected by the Court is in cases having to deal with campaign finance. In Buckley v. Valeo (1976) the Court said “disclosure of contributions to candidates and political parties will deter some individuals who otherwise may contribute. In some instances, disclosure may even expose contributors to harassment and retaliation. These are insignificant burdens on individual rights.” However disclosure “appear(s) to be the least restrictive means of curbing the evils of campaign ignorance and corruption that Congress found to exist.” The Court majority came to the same conclusion in McConnell v. Federal Election Commission (2003). Justice Thomas in his dissent asserts: “The right to anonymous speech cannot be abridged based on the interests asserted by the defendants.” Campaign finance disclosure was put to the test again in Citizens United v. Federal Election Commission (2010). The Court held that although individuals, companies, and groups could contribute unlimited funds to political parties or campaigns, donations over a certain nominal amount had to be disclosed. In his dissent on the disclosure aspect of the law Justice Thomas points out how “donors to certain causes were blacklisted, threatened, or otherwise targeted for retaliation.” Proposition 8 in California was a good example. Prop 8 was the gay marriage initiative that failed in 2008. In California, anyone donating more than 100 dollars not only had their name disclosed, also had other private information disclosed (email, phone number, street address, employer and so forth). In fact, self-employed persons had their businesses boycotted and protested. And the “director of the nonprofit California Musical Theatre, was forced to resign after artists complained to his employer.” Thomas is correct when he points out “the fallacy in the Court’s conclusion that disclaimer and disclosure requirement impose no ceiling on campaign-related activities, and do not prevent anyone from speaking.” Thomas wisely shows that disclosure is not needed for the federal government to enforce “corruption” laws. So what is the difference between the NAACP and the Citizens United cases? Nothing, but the outcome. The government is responsible for the safety of its citizens and protecting them from “physical harm” (otherwise their fundamental rights are violated). Disclosure in either case invites the potential for “physical harm”. This is why the Koch Brothers have been the big punching bag for liberals: they donate mostly to conservative choices. Physical harm is more than the being the victim of a crime. Physical harm can be the loss of business (from protests or boycotts) where a person’s property rights are threatened. A person should be able to practice non-volatile free speech without the threat of retaliation.
Thursday, March 15, 2018
In an earlier post “Should Fundamental Rights Conflict?” I put forth many of the requirements used by the Court to elevate a Fundamental Right using Substantive Due Process (rights not found in the Constitution). There should be another test for any right to qualify as a Fundamental Right. If the right cannot be defended using “strict scrutiny” (this is the highest burden placed on the government to defend laws which may circumvent the Fundamental Right) then the right is not really a Fundamental Right. No Fundamental Right is exempt from government regulation, but it should not be easy to regulate any Fundamental Right. Strict scrutiny means the statute must be “narrowly tailored to serve a significant government interest” and “there must be ample alternative means to achieve the protected ends.” Freedom of speech is a Fundamental Right that is found in the First Amendment of the Bill of Rights. It was never elevated as a right by the Court, because freedom of speech already existed in the Constitution. Freedom of speech is an interesting right to examine because it has different levels of scrutiny. Obscenity, defamation, fraud, and incitement are “outside the reach of the First Amendment.” Political speech is subject to “strict scrutiny”; commercial speech and adult store material are subject to “intermediate scrutiny” (although, this should not be the case for commercial speech); and “time, place, and manner regulations on speech need only be reasonable and justified without reference to the content of the regulated speech” (Ward v. Rock Against Racism, 1989). The bottom line, most speech is protected via “strict scrutiny” but there can be varying levels. Abortion is a Fundamental Right (Roe v. Wade, 1973), but government abortion legislation is held to a very low burden of proof: “undue burden”. Abortion laws are legal if the Court determines “they do not pose any ‘undue burden’ on the right to abort a non-viable fetus” (Gonzales v. Carhart, 2007 – Partial Birth Abortion Case). The Court has also upheld many abortion laws even though they had the “effect of increasing the cost or decreasing the availability” of abortions. No other Fundamental Right faces such a low standard of burden of proof for government regulations and it is simple to understand why: 1. every abortion is tragic whether to it is to save the life of a mother or because the baby is unwanted, abortion is tragic; and 2. Abortion rights are not unlimited, for instance, it faces many restrictions with regards to the “viability” of the baby. Many argue that when the Court elevated the “right to keep and bear arms for self-defense” (Heller v. DC, 2008 and McDonald v. Chicago, 2010) they erred because there are two sides of gun rights (lawful and unlawful). However, the same can be said about free speech explained earlier. In its majority decision, the Court, in Heller and McDonald failed to set forth guidelines for evaluating regulatory gun laws. However, the Court maintained that the right is not unlimited, such as regulations for owning a gun could include restrictions based on mental acuity or criminal record. Hence, the initial task of evaluating and interpreting regulatory gun laws fell on the Circuit courts. There were two interesting cases in 2011 decided by the Ninth Circuit (Nordyke v. King) and the Seventh Circuit (Ezell v. Chicago). In Nordyke, the Court held that an Alameda County law prohibiting gun shows on government property was Constitutional. In Ezell, the Court held that a Chicago law prohibiting target ranges within city limits was unconstitutional. The difference between the two cases is that in Nordyke the Liberal Court used more lenient abortion standards (undue burden) to uphold the law. In Ezell, the Court used First Amendment standards of stricter scrutiny to strike down the law. For instance, in United States v. Skoien (2010), the Seventh Circuit applied intermediate scrutiny to this case to uphold a law that “prohibits the possession of firearms by persons convicted of domestic-violence misdemeanor.” The Court reasoned that Skoien was not a “law abiding citizen” nor was “self-defense” the main component of the case. Conversely, in Ezell, he was a “law abiding” citizen and his case was paramount in self-defense. A similar standard should have been used in Nordyke (a law abiding citizen) to strike down the discriminatory Alameda law which solely targeted gun shows without a compelling data to show that it made Alameda County any safer to regulate gun shows. After all, people cannot defend themselves if they cannot purchase a gun, and people cannot defend themselves properly without getting the gun that best suits their needs. Abortion and guns are not the same. Less than 0.1% of guns are used in a crime where something tragic occurs. The same can be said about the First Amendment, less than 0.1% acts of Free Speech violates the law. However, more than 5% of abortions break the law, and every single abortion, legal or not, is not only tragic, but is also a violation of our moral and ethical code. Over half of the country would consider an abortion murder. In 2016, 3962 people died from guns (about 15% were self-defense) compare that with 1 million “legal” abortions.
Sunday, March 11, 2018
History is neglected in our school system. History is not a prerequisite for college. History is not important enough to establish any government standards like reading, writing, math or science. Sure, those subjects may be more important than history, but that does not mean history is not important at all. Evidence in many Supreme Court or lower court cases is provided through a historical analysis to properly interpret our Constitution. History was instrumental to decide many important and landmark cases. For example, to elevate a Fundamental Right using Substantive Due Process (rights not found in the text of the Constitution) one of the key perquisites is determine whether the proposed right is “deep-rooted in American history and traditions” (Washington v. Glucksberg – 1997). This standard was most recently applied in Troxel v. Granville (2000) and McDonald v. Chicago (2010). In Troxel, the Court held that parents had a fundamental right to make decisions regarding their children and in McDonald the Court held individuals had the right to keep and bear arms for self-defense. Each decision provided a detailed historical analysis to prove its position. Most decisions regarding Constitutional Clauses require Justices to make a historical analysis to interpret our Founding Fathers intent. In Kelo v. City of New London (2005), Justice Thomas provided a history of Takings Clause. In NLRB v. Canning Noel (2012) the Court provides a history of the Recess Appointment Clause. In United States v. Lopez (1995) Justice Thomas provides a historical analysis of the Commerce Clause and how the Court has deviated from the traditional intent of that clause. Justice Thomas also provides a historical analysis of African-American life after the Civil War in diversity cases such as Grutter v. Bollinger (1997). In McDonald Justice Thomas also provides a detailed historical analysis of the privileges and immunities Clause in both the Fifth and Fourteenth Amendments. The Necessary and Proper Clause, the Establishment Clause, and the entire Bill of Rights for that matter have all faced historical analysis by Justices in determining cases. Cases involving the structure of the Constitution such as the separation of powers between branches of government also requires a historical analysis. Cases involving the unique nature of federalism and the concept of dual sovereignty of the nation and states a historical analysis is necessary. Historical analysis is necessary to interpret the Founding Fathers intent as well as the intent of the drafters of the Fourteenth Amendment. To understand the intent of these people, Justices also need to understand the philosophies of John Locke, William Blackstone, and the Baron de Montesquieu, since it was their writings that influenced the drafting of the Declaration of Independence and the Constitution. James Madison’s writings are probably the most influential to understanding the intent of the Founding Fathers. Madison, of course, authored several of the 85 Federalist Papers along with John Jay and Alexander Hamilton. Madison’s Federalist #10 about factions is highly influential and quoted immensely by Justices. The history of Colonial State Constitutions and its provisions and clauses are also important to understand the intent of the Founders when writing the Constitution. Justices routinely compare the meaning of words within the Constitution and between State Constitutions to understand intent. For instance State can have two meanings: Nation and the States of the Union. Justices routinely disagree about meanings of clauses and provisions in the Constitution and can provide two unique historical analyses to back up their claims. For instance, conservatives view the Establishment Clause as a federalism clause applying only to the federal government, however liberals see the clause also applying to the states. And then, of course, the Justices must understand the significance behind the history of hundreds of years of precedent and how to apply it. Liberal Justices work tirelessly to take historical analysis from Court decisions. They can accomplish this by saying the Constitution is a “living document” first theorized by early progressive justices such as Oliver Wendell Holmes. History can also be eliminated from judicial decisions by using other liberal or progressive techniques such as “presumption” or “judicial restraint”. Justices use the technique of “restraint” to sustain State or Federal laws by “presuming” these laws are constitutional unless those challenging the laws can prove otherwise. Finally, liberal justices can eliminate history in the decision process by merely siding with the majority. Of course, this is dangerous. Majority rule led to precedent such as Jim Crow Laws, mandatory sterilization, unlawful internment, and a clear and present danger. In the first landmark case in Supreme Court history, Marbury v. Madison (1804), Chief Justice Marshall said it was the job of the Court “to say what the law is”. By omitting history through a “living document”, “presumption”, “judicial restraint”, and majority rule Justices are not deciding “what the law is”. It is judicial laziness. Justices merely “defer” to what is popular or what Congress wants and do not care if a law passes Constitutional muster. Knowledge is paramount. I cannot see any reason to limit rulings based on lesser knowledge of history. In Meyer v. Nebraska (1923) the Court recognized the fundamental right to obtain knowledge. Why would Justices not practice what they preach to be a fundamental right? Of course, students may believe history is not essential to survive, but is it okay to be ignorant (unless they want to be a judge). Today, there is no reason to be ignorant about history with encyclopedias on our phones – yet we are getting dumber, not smarter. Without understanding history and our framers intent, we take our Liberty, fundamental rights, and personal freedoms for granted. That should never happen. That is mockery to every person that died fighting for our personal freedoms. Freedom comes at a cost and it is important to never forget that.
Thursday, March 8, 2018
Justice Thomas’s stood alone in his dissenting opinion because no one else wanted to say that Berman and Midkiff were incorrectly decided and should be overruled. Thomas recognizes the importance of Kelo since it basically nullified the public use provision of the Takings Clause. Thomas goes into a historical and textual interpretation of the Takings Clause and he concludes: “The most natural reading of the Clause is that it allows the government to take property only if the government owns, or the public has a legal right to use, the property, as opposed to taking it for any public purpose or necessity whatsoever” (this is a narrow interpretation of the Clause which Thomas backs up with a detailed analysis). Thomas points out words such as “general” or “general public use” could have been used if the Founders intended a broader interpretation of the clause. Thomas teaches us that the “Takings Clause” is not a grant of power, but a limitation of federal government power. He says the Takings Clause should be used in conjunction with the Necessary and Proper Clause such as: “Government may take property only when necessary and proper to the exercise of an expressly enumerated [constitutional] power.” Thomas points out the mistakes made in Berman and Midkiff: The Court “erred by equating the eminent domain power with police power of the states.” The end result of these cases: “Once one permits takings for public purposes in addition to public uses, no coherent principle limits what could constitute a valid use.” Thomas bashes the majority: “Obliterating a provision of the Constitution, of course, guarantees that is will not be misapplied.” Thomas then went on to explain how the liberal view of the Takings Clause is discriminatory. The famous footnote four case, United States v. Carolene Products (1938), provided constitutional provisions that protect “discrete and insular minorities.” “Surely, that principle would apply with great force to the powerless groups and individuals the Public Use Clause protects”. It encourages “those citizens with disproportionate influences and power in the political process, including large corporations and development firms’ to victimize the weak.” Thomas provides data: “Of all the families displace by urban renewal projects from 1949 through 1963, 63 percent of those whose race was known were nonwhite, and of the families, 56 percent of the nonwhites and 38 percent of the whites had incomes low enough to qualify for public housing.” Furthermore “Urban renewal projects have long been associated with the displacements of black; ‘in cities across the country, urban renewal came to be known as Negro Removal.’” Thomas’s dissent should have demonstrated renewal economic projects such as Kelo should fit in Justice Kennedy’s “equal protection” thinking he used in Romer and Obergefell. In his majority decision Justice Stevens said “We emphasize that nothing in our opinion precludes any state from placing further restrictions on the exercise of the takings power.” States have taken this opening to change their constitutions to protect private citizens from state police power and federal legislation. Some may argue that urban renewal projects help minorities. That may be true to a certain extent. They also argue that everyone in eminent domain receives a fair compensation. That is also true, but fair compensation for a home in a slum is not much money. The amount of money “compensated” is not going to move a poor person out of poverty. Let’s face facts: urban renewal projects do not employ persons being displaced nor do they help them find new housing. It is a predatory practice and helps make the rich richer, the poor poorer and the government happy with more tax revenue. Of course, we are all aware that liberals like to spread the wealth even if it is from the poor to the rich. In fact, a different ruling in Kelo could have endangered welfare and social justice. Consider this example: Property consists of one’s possessions. Hence, money is property. That means tax takings should only be used for public purposes: transportation infrastructure, parks, and government functions. Tax takings should not be used for private purposes such as welfare, Medicaid, or other programs that merely transfers wealth from one private citizen to another.
Saturday, March 3, 2018
I hear it every day: conservatives do not like minorities or the poor. However, when it comes to eminent domain cases, liberals are the ones who favor government intrusion in favor of the wealthy and corporations over minorities and the poor. Eminent domain cases are covered under the Fifth Amendment’s “Takings Clause” which states: “nor shall private property be taken for public use, without just compensation.” In Calder v. Bull (1793) Justice Chase said that government is restricted from passing a “law that takes property from A, and gives it to B.” However, liberal interpretations of the “Takings Clause” has completely changed the meaning of the clause to include taking private property for private use. A great case to examine is Kelo v. City of New London (2005) to illustrate this point. In Kelo the Court held (Justice Stevens wrote the majority opinion) the City of New London can take Kelo’s property for private reasons if it meets public concerns such as creating “new jobs and increased tax revenue”. Furthermore, even if the takings could have possible public implications, then it is constitutional. New London’s renewal plan included, among other things, clearing space for a new Big Pharma (Pfizer) facility. Two previously erroneous Supreme Court decisions were the key precedent used for this case: Berman v. Parker (1954) and Hawaii Housing Authority v. Midkiff (1984). In Berman the Court held that a DC redevelopment plan was constitutional and in Midkiff the Court held that a Hawaii plan to allocate land from wealthy land owners to private citizens was constitutional. In Berman, the Court held that the area being redeveloped was so run down that it was a public hazard making the takings acceptable (even though much of land would be used to build new private businesses). In Midkiff the Court held the State’s purpose to end the “social and economic evils of land oligopoly” qualified as a valid use of police power. Interestingly, Justice O’Connor wrote the majority opinion in Midkiff, and the minority opinion in Kelo. Justice O’Connor’s dissent in Kelo is well reasoned (unlike Midkiff). O’Connor starts by stating “that no word was unnecessarily used, or needlessly added” to the Constitution. She continues to point out two viable reasons for the government to take private property: 1. For “a road, a hospital, or a military base and 2. For a “transfer to private parties, often common carriers, who make the property available for public use – such as with a railroad, public utility, or a stadium.” O’Connor offers a third reason that is flawed which gave birth to Berman and Midkiff. O’Connor points out that 64% of the property taken in the Berman case were “dwellings beyond repair.” But what about the other 36% of properties confiscated that O’Connor fails to acknowledge. Mr. Berman’s store property was given to another private business even though it was well maintained. O’Connor would rightly assert “police power and ‘public use’ cannot always be equated.” O’Connor summarized the ramifications of the majority’s decision in Kelo means “Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.” O’Connor is correct to point out if the only basis for taking property is to increase government tax revenue, they are free to take anybody’s property; no one is safe. Justice Kennedy was again the swing vote. In his concurring opinion he states “under the Equal Protection Clause [the Court] must strike down a government classification that is clearly intended to injure a particular class of private parties, with only incidental or pre-textual public justifications.” This explains so much and why Kennedy was a swing vote in Romer v. Evans and Obergefell v. Hodges (2015). In Romer the Court struck down a law prohibiting preferential treatment to gays for things such as quota systems for schools or corporations. Of course, Obergefell was the famous case that made gay marriage a fundamental right. Maybe if Kelo was gay then Kennedy would have struck down this law, but his opinion in Romer and Obergefell conflict with Kelo since Kelo discriminates against the poor. For example, in Bailey v. Alabama (1911), the Court saw through a law that was valid on its face, but had discriminatory intentions. The state of Alabama made blacks sign work contracts and when blacks broke the contract they were subject to hard labor in prison. The problem with law was that white people did not have to sign work contracts, so the law was targeting blacks to make them slaves again. Kelo and Berman are no different. States are targeting depressed areas to take property from poor people and to give it to wealthy rich people and companies like Pfizer. Berman and Kelo’s properties were well maintained and should not have been taken simply because the neighborhood around them was depressed, especially for private economic reasons. It is important to note that Kelo’s property was a vacant lot for several years after this decision. When developers financing fell through, Kelo’s lot was vacant gaining no tax revenue and was at one point used as dump site after Hurricane Irene hit the town. Liberals will never tell you this and the media will not cover it, but Kelo is an example of liberal social justice gone awry.
Wednesday, February 28, 2018
The Commerce Clause and Necessary and Proper Clause Thomas believed the Court should adhere to the original meaning of the Interstate Commerce Clause: Trade amongst the States. However, during the FDR era the Commerce Clause was expanded to cover anything that is economic including intrastate commerce (Wickard v. Filburn, 1941). In United States v. Lopez (1995), Printz v. United States (1997), United State v. Morrison (2000), and Sabri v. United States (2004) the Court placed limits on the Commerce Clause: any law that was outside of being economic nature was not covered under the Commerce Clause. In Gonzalez v. Raich (2005) the Court held a federal law that prohibited limited medical marijuana growth for personal consumption was unconstitutional. Scalia sided with the majority citing Wickard and the Necessary and Proper Clause saying very limited marijuana growth was still economic in nature. Thomas, disagreed and did not hold back his disgust towards the majority. The Dormant (Negative) Commerce Clause Usually the Supreme Court has the final say regarding the legal aspect of laws. That is not true for Dormant Commerce Clause cases. Congress can veto the Court’s ruling with legislation if it wishes to do so. This is exactly what happened in United States v. SE Underwriters Association (1944) where the Court held insurance could be regulated by the Commerce Clause (this overruled Paul v. Virginia, 1869). In 1945, Congress passed the McCarran-Ferguson Act to negate the Courts decision. In Hillside Dairy v. Lyons (2003) Thomas stated that “the negative Commerce Clause has no basis in the text of the Constitution, makes little sense, and has proved virtually unworkable in application.” Thomas made similar claims in Pharmaceutical Research of America v. Walsh (2003) Other First Amendment Issues: Campaign Finance Thomas urges overruling of Buckley v. Valeo, (1976), and Austin v. Michigan Chamber of Commerce, (1990) in McConnell v. Federal Election Commission (2003) and again in McCutcheon v. Federal Election Commission (2014), to permit unlimited corporate and union political contributions. Thomas believes much of the campaign finance regulatory system violates the First Amendment. Thomas (with Scalia) also urged overruling Buckley in Nixon v. Shrink Missouri Government PAC, (2000). Of course Thomas got his wish when in Citizens United (2010) the Court held unlimited corporate and union political contributions where the law of the land. Miscellaneous In Johnson v. Texas (1993), Graham v. Collins (1993) and Trennard v. Dretke (2004) Thomas supports reconsideration of Penry v. Lynaugh, (1989) where the Court held that consideration of mental deficiencies were allowed when imposing criminal sentence. In Farmer v. Brennan (1994) and Ewing v. California (2003) Thomas wants to revisit Eight Amendment precedent including Solem v. Helm (1983), which applied a proportionality test to the Cruel and Unusual Punishments Clause and Estelle v. Gamble, (1976), which held that the Eighth Amendment regulates prison conditions not imposed as part of a sentence. In Cooper Industry v. Leatherman Tool Groups (2001) Thomas urged overruling BMW of North America, Inc. v. Gore (1996) which limits the size of punitive damage awards. In Grutter v. Bollinger (2003) the Court held that race can be used as a factor to determine admittance into Michigan Law School. Justice Thomas quoted a Fredrick Douglass’s speech: What the Negro Wants in his dissent saying race has no place in the educational system as Justice Harlan said “the constitution is color blind.” In Obergefell v. Hodges (2010) the Court held gay marriage was a fundamental right. In his dissent Thomas points out that Liberty is being free from government restriction or action and gay people’s freedom is not being encroached because being gay is not a crime. Furthermore, Thomas points out that Liberty does not include a “government entitlement or benefits” that marriage may provide. In American Trucker v. Whitman (2001) Thomas urges to revisit the Courts jurisprudence over the Separation of Powers. In Mitchell v. United States (2001) Thomas urges overruling Griffin v. California (1965) and Carter v. Kentucky (1981), which prohibited inferences based on a defendant’s silence in criminal cases.