Tonight I appeared on Lou Dobbs Tonight with guest host Tom Sullivan. I was grateful to have enough time to explain (I hope intelligibly!) the application of Printz, Arizona v. United States, NFIB v. Sebelius, and South Dakota v. Dole to the debate over sanctuary cities. On April 21, I will be speaking at the Santa Clara Law Review’s symposium on sanctuary cities–stay tuned for details. Plus, I geeked out by explaining the concept of initial en banc, with respect to the 4th Circuit in IRAP v. Trump, to the biggest audience yet.
On Friday, I will be speaking at a symposium hosted by the St. Thomas Journal of Law & Public Policy. The occasion of the symposium is the 5th Anniversary of NFIB v. Sebelius, and my talk will be titled, The Saving Construction at 5 Years. The Chief’s opinion has not aged well.
It is hard to believe that the decision is only 5 years old, because in fact the case itself was born two years earlier. In the Author’s Note of Unraveled, I explain how my career and the ACA have intertwined.
By fate or design, my young career has tracked the trajectory of the Affordable Care Act. In September 2009, when I served as a law clerk after graduating from law school, I launched a blog to focus on constitutional and other legal issues. On my fourth day of blogging, I covered this new bill called Obamacare, and discussed whether the individual mandate could force someone to buy insurance. In November 2009, I was by chance present at a meeting where the legal strategy to challenge the individual mandate was hatched. In March 2010, I was unceremoniously asked to cut short my visit to the new Capitol Visitor Center; President Obama was about to enter, and give a final rallying call to House Democrats to vote for the Affordable Care Act (ACA). I emerged from the building to thousands of Tea Parties chantings “Kill the Bill.”
After constitutional challenges to Obamacare were filed, my best friends and colleagues served as the attorneys and scholars developing the groundwork to attack the individual mandate. Throughout 2010 and 2011 while clerking, I continued to blog from a distance, based on closely following the case and on insights I gained from key players. In November 2011, shortly after the Supreme Court accepted review of the ACA cases, I was hired as a law professor at the South Texas College of Law in Houston. It was around that time that I decided to write a book about the legal challenges to Obamacare. I didn’t quite know how the case would be resolved, but I knew there was an important story to be preserved for history.
Leading up to the Supreme Court’s June 2012 decision in NFIB v. Sebelius, I assembled the chronology of how the challenge began and how it wound its way through the courts. The only uncertainty was how the book would end. To expedite the publishing process, I wrote two alternate endings: one in which the Supreme Court upheld the mandate on a 5– 4 vote, with Justice Kennedy casting the decisive vote, and another in which the Court invalidated the mandate on a 5– 4 vote, also with Justice Kennedy casting the decisive vote. Needless to say, neither happened, and I had to write the final ending, with the chief justice saving the law. In September 2013, I published my first book, Unprecedented: The Constitutional Challenge to Obamacare. The inexplicable and unexpected ending of NFIB v. Sebelius injected a strong political element into the legal thriller, and made the case unlike any other in modern times. But it also left the story of Obamacare unfinished. Until 2013, I largely remained an interested observer, the Rosencrantz and Guildenstern of Obamacare – there at all the right moments, talking to all the key actors, but not doing anything of actual importance. But since 2013, I have become an active participant.
This is the Hill Military Academy, a private school shut down due to the compulsory education law.
Buck v. Bell
This is Carrie Buck. Why was she designated as “feebleminded”? Because she had an “illegitimate child,” and they charged her with “promiscuity.” The pregnancy resulted from a rape.
This is Carrie Buck with her mother, Emma Buck.
This is Dr. J. H. Bell, the superintendent at the Virginia State Colony for Epileptics.
This is the courthouse in Amherst County, Virginia where Buck’s case was first “heard”:
Here is a rendering of Carrie’s Buck family tree, as performed by Dr. Harry H. Laughlin. F stands for “feebleminded.” Notice That Carrie Buck is designated with an F, her mother Emma was designated with an F, and her daughter, Vivienne, was designated with an F. There you have three generations of imbeciles. Enough.
Haughlin, impressed that Nazi Germany adopted his ideas, had this to say:
The fact that a great state like the German Republic, which for many centuries has helped furnish the best that science has bred, has in its wisdom seen fit to enact a national eugenic legislative act providing for the sterilization of hereditarily defective persons seems to point the way for an eventual worldwide adoption of this idea.
In 1936, Laughlin was invited by the Nazis to receive an honorary degree of Doctor of Medicine at the University of Heidelberg for his work in the “science of racial cleansing.”
During the Nuremberg trials, attorneys for the Nazis read from Justice Holmes’s opinion to illustrate that the Germans did not invent eugenics.
Here is Carrie Buck shortly before she died.
Here are several pieces of American propaganda about Eugenics.
This one says, “Some people are born to be a burden on the rest. Learn about heredity. You can help to correct these conditions.”
This piece of propaganda says “Eugenics is the self direction of human evolution.”
Speaking of social darwinism, and surivival of the fittest, here is Justice Oliver Wendell Holmes, Jr., who firmly believed that “Three generations of imbeciles are enough.”
Buck’s daughter, Vivian, was raised by foster parents, This is Vivian at 6 months old. She flunked her IQ test. So she was also deemed an imbecile:
It was Estabrook’s habit to photograph the subjects of his eugenical family studies, and one surviving photo shows Alice Dobbs holding Carrie’s baby. It appears that Mrs. Dobbs is holding a coin in front of Vivian’s face in an attempt to catch her attention. The baby looks past her, staring into the distance, apparently failing the test. Estabrook described that moment during his testimony at trial a few days later: “I gave the child the regular mental test for a child of the age of six months, and judging from her reaction to the tests I gave her, I decided she was below the average.”
In case you were wondering, the child was not an imbecile. Here is her report card from first grade. She was a solid B student, with an A in deportment, and on the honor roll.
Vivian died at the age of 8 due to intestinal diseases.
Despite her sterilizations, Buck would go on to be married, twice. First to William Eagle.
25 year after William’s death, Buck married Charlie Deatmore.
Here is Carrie Buck shortly before she died.
Here is a sign in Virginia to commemorate Buck v. Bell.
Griswold v. Connecticut
Here is Estelle Griswold, the lead plaintiff at the Planned Parenthood Center of New Haven, Connecticut.
Here is a photograph of Dr. C. Lee Buxton and Estelle Griswold after their arrest.
A penumbra is a partial shadow outside the complete shadow of an opaque body.
This is Lord Edward Coke, the Chief Justice of England. He is most famous for prosecuting Sir Walter Raleigh (whose inability to confront witnesses was the origin of our confrontation clause) and the Gunpowder Plot (remember, remember the 5th of November, or V for Vendetta). Coke is most famous for deciding Lord Bonham’s case, the case most famously cited for the proposition that a court could find a law unconstitutional. The King was subject to the laws, and the laws of Parliament were void if in violation of “common right and reason.” It was not John Marshall who created the concept of judicial review. However, after this case, he was transferred to the King’s Bench, where he had less power. He also famously wrote the Institutes of the Lawes of England.
And, for those interested, the South Texas College of Law Library has a 1607 English Dictionary. None other than Lord Coke ordered it censored for its seditious definition of the word liberty. Indeed Coke ordered the book to be burned!
Sec. 26.01. PROMISE OR AGREEMENT MUST BE IN WRITING. (a) A promise or agreement described in Subsection (b) of this section is not enforceable unless the promise or agreement, or a memorandum of it, is
(1) in writing; and
(2) signed by the person to be charged with the promise or agreement or by someone lawfully authorized to sign for him.
(b) Subsection (a) of this section applies to:
(1) a promise by an executor or administrator to answer out of his own estate for any debt or damage due from his testator or intestate;
(2) a promise by one person to answer for the debt, default, or miscarriage of another person;
(3) an agreement made on consideration of marriage or on consideration of nonmarital conjugal cohabitation;
(4) a contract for the sale of real estate;
(5) a lease of real estate for a term longer than one year;
(6) an agreement which is not to be performed within one year from the date of making the agreement;
(7) a promise or agreement to pay a commission for the sale or purchase of:
(A) an oil or gas mining lease;
(B) an oil or gas royalty;
(C) minerals; or
(D) a mineral interest; and
(8) an agreement, promise, contract, or warranty of cure relating to medical care or results thereof made by a physician or health care provider as defined in Section 74.001, Civil Practice and Remedies Code. This section shall not apply to pharmacists.
I have an album of photos of the house from Shelley v. Kraemer here:
Here is the text of the 14th Amendment:
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The 13th Amendment is the only Amendment to apply directly to individuals, and not the government:
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
