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Mid-Day Digest

Jun. 16, 2020

THE FOUNDATION

“One single object … [will merit] the endless gratitude of the society: that of restraining the judges from usurping legislation.” —Thomas Jefferson (1825)

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IN TODAY’S DIGEST

FEATURED ANALYSIS

Gorsuch’s Judicial Activism

Nate Jackson

In a 6-3 ruling Monday, the Supreme Court discovered that a law written in 1964 covers the libertine cultural sensibilities of 2020. Don’t take our word for it. “There is only one word for what the Court has done today: legislation,” wrote Justice Samuel Alito in his blistering dissent in Bostock v. Clayton County. “The question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964. It indisputably did not.” In fact, Alito noted, Congress has for decades conspicuously and repeatedly declined to add “sexual orientation” or “gender identity” to Title VII of the Civil Rights Act. Thus, he concludes, “A more brazen abuse of our authority to interpret statutes is hard to recall.”

Nevertheless, the majority opinion, written by Justice Neil Gorsuch, hides behind a fig leaf of textualism to declare that Title VII suddenly protects homosexuals and so-called “transgender” individuals under language that prohibits discrimination based on race, color, religion, national origin, and sex.

“Ours is a society of written laws,” wrote Gorsuch. “Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations. In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.”

Except that it was not a necessary consequence of the language written in 1964, when the pseudoscience of “transgenderism” had not yet reared its ugly head. With the exception of religion, the Civil Rights Act language covered immutable characteristics. Biological sex is immutable; it is not a behavioral preference or an option based on how you feel today. Indeed, at the core of the “transgender” argument is the contention that biological sex is not immutable but malleable — with or without surgical mutilation of one’s body. In one of the cases before the Court, a man was hired by a funeral home only to decide later that he is a she. His decision to behave and dress as a female caused distress to grieving families using that funeral home, so he was fired. Yet Gorsuch insists that anti-discrimination law protects that man’s gender-dysphoric decision.

In the other two cases, employers fired workers for engaging in behavior the companies found objectionable. Gorsuch insists that a law protecting immutable characteristics forces an employer to retain employees who make behavioral decisions. Whether their firing was justifiable is debatable. Certainly, all people deserve to be treated with dignity, and the overwhelming tide of American opinion is certainly in the plaintiffs’ favor, as noted by Justice Brett Kavanaugh in a separate dissent. “Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law,” Kavanaugh wrote, “and [they] can take pride in today’s result.”

The biggest problem is how that result was achieved. It was not through textualism or proper respect for the constitutional separation of powers. It was through brazen judicial activism. Alito nailed it as such, writing, “The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice [Antonin] Scalia, but no one should be fooled. The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated — the theory that courts should ‘update’ old statutes so that they better reflect the current values of society. … If the Court finds it appropriate to adopt this theory, it should own up to what it is doing.”

If courts can change laws based on future understanding and redefinition of words, how can Congress pass meaningful legislation? In fact, Congress can choose not to pass legislation only to see the courts usurp its Article I power and do it later anyway.

It’s also not difficult to foresee yet another front opening up in the battle for religious liberty, because the Court’s convoluted rewrite of the Civil Rights Act actually pits the now-broad and catch-all interpretation of “sex” against religion. That’s a terrible shame, doubly painful because it was perpetrated at the hands of one of President Donald Trump’s highly touted Supreme Court appointments.

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SCOTUS Ignores the Second Amendment … Again

Mark Alexander

The Supreme Court has, once again this week, declined to hear challenges to state- and local-government infringements on the “right of the people to keep and bear arms,” which is indeed the “First Civil Right” of all law-abiding Americans, as embodied in our Constitution’s Second Amendment.

The great irony of the High Court’s silence on these challenges is that, as our Constitution’s most noted scholar and jurist Joseph Story wrote in his exhaustive Commentaries on the Constitution of the United States (1833), “The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of the republic; since it offers a strong moral check against usurpation and arbitrary power of the rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.” In other words, the Court has refused to take up cases essential to the protection of the founding document that empowers the courts.

In their dissenting opinion regarding the SCOTUS denial to consider these cases, Justice Clarence Thomas, with Justice Brett Kavanaugh, wrote:

“The text of the Second Amendment protects ‘the right of the people to keep and bear Arms.’ We have stated that this ‘fundamental righ[t]’ is ‘necessary to our system of ordered liberty.’ Yet, in several jurisdictions throughout the country, law-abiding citizens have been barred from exercising the fundamental right to bear arms because they cannot show that they have a ‘justifiable need’ or ‘good reason’ for doing so. One would think that such an onerous burden on a fundamental right would warrant this Court’s review. This Court would almost certainly review the constitutionality of a law requiring citizens to establish a justifiable need before exercising their free speech rights. … But today, faced with a petition challenging just such a restriction on citizens’ Second Amendment rights, the Court simply looks the other way.”

They conclude:

“It appears that a handful of States throughout the country prohibit citizens from carrying arms in public unless they can establish ‘good cause’ or a ‘justifiable need’ for doing so. The majority of States, while regulating the carrying of arms to varying degrees, have not imposed such a restriction, which amounts to a ‘[b]a[n] on the ability of most citizens to exercise an enumerated right.’ The Courts of Appeals are squarely divided on the constitutionality of these onerous ‘justifiable need’ or ‘good cause” restrictions.’ One of this Court’s primary functions is to resolve ‘important matter[s]’ on which the courts of appeals are ‘in conflict.’“

But the justices failed to do so, as they have for the last decade. As we have noted many times before, the future of American Liberty rests on the composition of the federal courts. The Supreme Court is now generally divided between those who abide by their oaths ”to support and defend“ our Constitution and act accordingly and those who endeavor to rewrite our Constitution. And correcting that divide rests on the reelection of Donald Trump and retaining the Republican Senate majority, as the next president will have one or two SCOTUS nominees who will finally shift the balance of the High Court back to its constitutional authority and mandate.

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Leftmedia Creates Dubious Victim Narratives While Smearing Cops

Thomas Gallatin

Much of the mainstream media and the political class no longer care for nor believe in truth these days, at least not when the truth doesn’t confirm the "social justice” narrative. This reality has been typified by the MSM reporting surrounding the death of Rayshard Brooks, the black man who died while fighting and resisting arrest for a DUI.

For leftist politicians and their Leftmedia cohorts, the only two relevant facts are that he was a black man and he was killed by police. Both facts serve only to confirm their predetermined narrative of the U.S. being a country rife with “systemic racism.”

Yesterday, we concluded that Brooks’s death did not bare almost any resemblance to the unjust death of George Floyd. The two are not the same. But, as predictable as rain in a thunderstorm, the narrative being spun by the Left is that they are essentially the same.

As former Georgia gubernatorial candidate Stacey Abrams ridiculously asserted, “Sleeping in a drive-thru must not end in death.” No, but resisting arrest, fighting with cops, taking one of their tasers, attempting to flee, turning and shooting at one of the cops — now that can get you killed.

CBS News ran a story entitled, “Who is Rayshard Brooks, 27-year-old black man killed by Atlanta police?” The article paints a sympathetic picture of Brooks as a doting father whose life was taken by a police officer who has been fired and is under investigation. Brooks may have indeed been a doting father, but he also had a rap sheet that included, among others, charges of cruelty to children. In any case, those details are essentially beside the point when investigating the events that led to his death. So why does the Leftmedia highlight only some of them?

The answer is simple: “social justice.” The neo-Marxist roots from which the social-justice ideology springs intentionally divides the world into two basic groups — the oppressors (the bad guys) and the oppressed or the victims (the good guys). Using this overly simplistic dynamic, everything is categorized into one of these two groups. “White privilege” (oppressor class), “persons of color” (victim class), law enforcement (oppressor class), blacks killed by law enforcement (victim class), and on and on and on.

For the social-justice activists like Black Lives Matter to make headway with their ultimate objective of fundamentally transforming the U.S. into a socialist society, any details or nuances that fail to support the narrative of “systemic racism” are either ignored or excused as “victim blaming.” Even the details of the incident itself fade into the greater milieu of the “cause.”

The truth — that Brooks is the one primarily responsible for the events leading to his own death — is at best denied or at worst used as “evidence” that someone is enjoying “white privilege.” The two officers who responded to the 911 call that day were not out on the war path looking for a black man to gun down; just the opposite, in fact. They put on that uniform to serve their fellow man by enforcing the law. Where is that narrative in the MSM? Where are the stories of police officers risking their lives day in and day out as they work to make our world a better place? Where are the stories of the grueling impact this very difficult job has on them and their families? Instead, these good guys are repeatedly smeared by leftist politicians and the MSM as oppressors and “part of the problem.”

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Canceling Our History

Douglas Andrews

Buried beneath news about sorry Supreme Court decisions and rebranded autonomous zones was this clear-cut sign of a sick society: a new Gallup poll indicating that U.S. national pride has fallen to a record low.

Most alarming of all is the poll’s finding that our young people — our future — are today less patriotic than ever, with just one in five adults between 18 and 29 declaring that they’re “extremely proud to be an American.”

But this isn’t a new phenomenon. Our Mark Alexander pointed it out a few years back when he recalled the words of our 44th president: “I believe in American exceptionalism,” declared Barack Obama back in 2009, “just as I suspect that the Brits believe in British exceptionalism and the Greeks believe in Greek exceptionalism.”

A fish rots from the head. Or, as Jonah Goldberg put it back when he was still Jonah Goldberg, “Ultimately, it’s not that liberals don’t believe in American exceptionalism so much as they believe it is holding America back.”

So it’s no wonder that we find ourselves in this dismal spot. After all, we’ve spent the last three weeks deifying thugs, demonizing cops, and denying our shared past. We’ve been overcome by a Cancel Culture that sees “white supremacy” and “systemic racism” behind every tree and around every corner; a culture that declares our Founding Fathers irredeemable, and even our abolitionists unworthy.

“BLM,” said the spray can to John Greenleaf Whittier — the poet, Quaker, and anti-slavery activist for whom the California city is named. The rest of the graffiti is unprintable. But if you think this sort of vandalism is indefensible, you’d be wrong. Here’s Swarthmore College archivist Celia Caust-Ellenbogen: “It is important to acknowledge the reasons why the protesters are so frustrated. While Whittier is celebrated for his poetry and his activist legacy, there are numerous African American poets and activists of his era … who have received too little recognition. The statues in this country over-represent the influence of White people and under-represent the importance of people of color, especially African American people, in our nation’s history.”

Got that? It’s okay to vandalize our nation’s monuments if you’re “frustrated.”

The original Vandals were a Germanic tribe that spent 14 days plundering Rome toward the end of its empire days. This sacking of the Eternal City by barbarian tribesmen, and their wanton defacement and destruction of Rome’s magnificent statues and monuments, should give us pause. So should the lengths to which our academics and our elected officials will go to justify the vandalism in our midst today.

Today, it’s Robert E. Lee. But what about tomorrow? Will we rename our nation’s capital because its namesake, The Indispensable Man, was a slaveholder? What about renaming that trendy state to the northwest, the one with that same slaveholding Founder featured foremost in its flag?

Make no mistake: This effort to whitewash our nation’s history by defacing and destroying its statues and monuments will do lasting damage. Indeed, it already has. As Matt Walsh put it recently in The Daily Wire, “If we cannot be united around tradition, language, or heritage, and we also cannot be united around a shared belief in freedom and human rights, then what is left? We would appear to be, already, two different countries.”

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Who Was Most Susceptible to COVID-19?

Lewis Morris

As U.S. states emerge from the China Virus-imposed quarantine and more reliable data of the virus’s impact on the country becomes clear, people are beginning to wonder if all the misery caused by the lockdown was worth the effort.

Reliable data from various studies demonstrates that the vast majority of the most serious COVID-19 cases in the United States were among the elderly and those with preexisting conditions. A review by Stanford medical professor John Ioannidis found that around 80% of Americans who died of COVID-19 were older than 65. Additional data from the Foundation for Research on Equal Opportunity found that Americans over 85 are 2.75 times more likely to die from COVID-19 than those 75 to 84 and 16.8 times more like than those 55 to 64. As treatments have improved, the mortality rate in general has dropped, with those under 45 making up less than 2% of total deaths.

This is information we have suspected all along, but now we have more extensive data. And the facts prompt the big question: Was the lockdown necessary? Might it have been more effective to focus on protecting our at-risk population while letting the rest of the nation go about its business?

It’s hard not to suspect that the lockdown was a put-on manipulated by power-mad politicians and the media. Democrat governors like Michigan’s Gretchen Whitmer and New York’s Andrew Cuomo threatened their citizens and issued unconstitutional mandates. Democrats called for an indefinite lockdown, presumably through the presidential election, in hopes of using the crisis to their political advantage. They only looked the other way on lockdown restrictions when the Black Lives Matter rioting started, hoping the chaos would give them a political advantage. (In fact, New York contact tracers won’t ask people if they attended protests.) But now that President Donald Trump has decided the danger has abated enough to start holding his record-breaking rallies again, Democrats want to reinstitute lockdowns for fear Trump might gain a political advantage. Sensing an ulterior motive here?

There is unlikely to be consensus on whether governments did the right thing by going into full lockdown. There is evidence to suggest that extreme social distancing did slow the spread of the virus. But was that the real reason for our beating the grim death projections of the World Health Organization and Imperial College of London professor Neil Ferguson? If so, how do you explain Sweden?

Sweden was the outlier among nations during the China Virus pandemic because the country did not go into total lockdown. It isolated its sickest citizens, then allowed everyone else to pretty much go about their business. Children went to school and many businesses remained open. Sweden’s death toll per capita is higher than the U.S., but its total number of new cases is much lower. Some European countries, including Sweden’s closest neighbors, have seen fewer deaths, though others had a more devastating impact.

Partly as a result of its unique response to the virus, Sweden’s economy actually grew at an annual rate of 0.4% in the first quarter. This is relatively good news compared to other countries, particularly the U.S., which saw all of the economic gains made since Donald Trump became president vanish in a matter of weeks.

Doctors and Democrats warn that another lockdown may be in store in the fall if the expected spike in new cases continues to climb. Good luck shoving Americans back into their homes, particularly now that we know who among us needs to be protected. Politicians will have a hard time arguing that everyone should stay indoors, not work, and not go to school when only a portion of the population is at high risk for the virus. COVID-19 isn’t going away anytime soon, but hopefully our overwrought early response has seen its end.

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More Great Analysis

Lack of Trust Leads to Lack of Unity Among Americans, says Harold Hutchison.

Christian Today Pushes Social Justice, Not the Gospel, writes Thomas Gallatin.

Our Commitment to You

For nearly 24 years, we’ve been battling the mainstream media’s chokehold on public opinion. With today’s news coverage so focused on panic and sensationalism, our commitment to wade through it all to find you the actual news is now more important than ever. We hope our team’s coverage of the many contentious issues currently facing our nation has helped you find clarity and comfort amid the chaos.

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From each of us here, our deepest thanks for your support. —Christy Chesterton, Director of Advancement

NEWS EXECUTIVE SUMMARY

Jordan Candler

Above the Fold

  • “A Gallup poll published Monday found that only 20 percent of adults between the ages of 18 and 29 are ‘extremely proud to be an American.’” The Washington Free Beacon reports. “This is the lowest percentage of any demographic, falling 23 percent since 2017. According to the poll, this is the sixth consecutive year of decline in American pride across all demographics, and the first time ‘extreme pride’ among whites fell below 50 percent. American pride among nonwhites is 24 percent.” Not coincidentally, “The Victims of Communism Memorial Foundation released a study last year that found 70 percent of millennials and 64 percent of Gen-Z are likely to vote for a socialist, whereas only one-in-two millennials and Gen-Z have a favorable opinion of capitalism.”

  • The Daily Wire reveals, “On Wednesday, Democratic Speaker of the House Nancy Pelosi (CA) gifted Philonise Floyd, the brother of George Floyd, a folded, encased American flag during a photo-op. The House Speaker posted the images to her Facebook page and notified the public that the flag she gifted Philonise was ‘the flag that flew over the Capitol on the day of his brother’s murder.’” Mere weeks ago, Pelosi and Senate Minority Leader Chuck Schumer hypocritically pontificated, “Tear-gassing peaceful protesters without provocation just so that the president could pose for photos outside [the St. John’s Episcopal Church] dishonors every value that faith teaches us [emphasis added].”

Government & Politics

  • One-upping the Kennedy Courts: Supreme Court, per Justice Neil Gorsuch, invents new LGBT rights (Power Line)

  • Adding insult to injury, the Supreme Court refuses to hear Trump administration challenge to California sanctuary law (National Review)

  • “Looking the other way”: Justice Clarence Thomas accuses his colleagues of dodging gun cases (The Washington Free Beacon)

  • President Trump is considering a new $1 trillion infrastructure “stimulus” plan (Business Insider)

  • Joe Biden and the DNC raise over $80 million in May, their biggest monthly haul of 2020 race (CNBC)

  • Trump campaign and the RNC raise $14 million on Trump’s birthday, breaking fundraising record (The Daily Caller)

Business & Economy

  • Dow rallies after record retail sales jump of 17.7% in May (CNBC)

  • Facing huge budget gaps, governments have furloughed or laid off more than 1.5 million workers (The New York Times)

  • Research finds lockdowns are far worse for health and lives than coronavirus (The Federalist)

Culture & Heartland

  • “No question it is going to make it harder to defend our religious freedom, as far as an organization being able to hire people of like mind”: Conservative Christians concerned over “seismic implications” of Supreme Court ruling (The New York Times)

  • NYPD commissioner disbands plainclothes anti-crime units (FOX 5)

  • Orthodox Jews cut locks on closed New York City park to let children play (Washington Examiner)

The Latest on COVID-19

  • FDA withdraws emergency use authorization for hydroxychloroquine citing clinical-trial failures (The Hill)

  • Patients with underlying conditions were 12 times as likely to die of coronavirus as otherwise healthy people, CDC finds (The Washington Post)

  • Mutation in new coronavirus increases chance of infection (Reuters)

  • Mayor Bill de Blasio’s “contact tracing team” isn’t allowed to ask patients if they attended a protest (The Daily Caller)

Other Notables

  • Justice Department schedules first federal executions since 2003 for convicted child murderers (Washington Examiner)

  • NOAA leaders violated agency ethics code in “Sharpiegate,” independent panel finds (Washington Examiner)

  • Supreme Court validates LGBT protections on grounds LGBT activists reject (The Federalist)

  • U.S. embassy in Seoul removes “Black Lives Matter” banner day after being unveiled (The Daily Caller)

  • North Korea blows up South Korea liaison office (Fox News)

Closing Arguments

For more of today’s editors’ choice headlines, visit In Our Sights.

The Patriot Post is a certified ad-free news service, unlike third-party commercial news sites linked on this page, which may also require a paid subscription.

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VIDEOS

Video: The Rayshard Brooks Shooting Was Justified — “Much of the internal workings of this situation are politically motivated,” opines Anthony Brian Logan.

Video: Troops Ready to Evict Trump From White House, Says Biden — Joe Biden says his “single greatest concern” is that President Trump will “steal the election.”

Video: Who’s More Radical: The Left or the Right? —"If the left got everything it wanted, the government would get much bigger,“ says PragerU’s Will Witt.

BEST OF RIGHT OPINION

For more of today’s columns, visit Right Opinion.

SHORT CUTS

Insight: "When even one American — who has done nothing wrong — is forced by fear to shut his mind and close his mouth, then all Americans are in peril.” —Harry S. Truman (1884-1972)

For the record I: “I wouldn’t be here if it wasn’t for the best of what policing is.” —House Minority Whip Steve Scalise, who was in the crosshairs of a leftist would-be assassin in 2017

For the record II: “Those who have most consistently undermined the police and other elements of law enforcement are among those most shocked by the escalation of crime and violence.” —Thomas Sowell

Observations: “It seems to me that the greatest privilege on offer in our culture today is the privilege to be utterly immune from the law. This is the privilege exercised by many of the ‘protesters.’ And though some of them are white males, many are not. It is, then, a privilege that is not dispensed based on race, but on ideology. We might call it Leftist Privilege.” —Matt Walsh

Prescient: “So this week it’s Robert E. Lee… I wonder: Is it George Washington next week, and is it Thomas Jefferson the week after? You know, you really do have to ask yourself — where does it stop?” —Donald Trump, 2017

Upright: “People keep saying the biggest problem with yesterday’s [LGBT] ruling is the violation of separation of powers, or that it was legislating from the bench. Those are problems. But not the biggest. The biggest problem is that the Court has imposed a harmful gender ideology on the nation.” —Ryan T. Anderson

Re: The Left: “Allowing judges to rewrite the Civil Rights Act to add gender identity & sexual orientation as protected classes poses a grave threat to religious liberty. We’ve already witnessed courts use the redefinition of words as a battering ram to crush faith-based businesses and orgs.” —Tony Perkins

Nailed it: “There seems to be a widescale misapprehension about American unity: that it can be achieved by cramming down broad rules down from the top. That’s not how this works. We’re supposed to agree on broad principles of liberty, and then leave each other the hell alone.” —Ben Shapiro

Non sequitur: “Sleeping in a drive-thru must not end in death.” —former Georgia gubernatorial candidate Stacey Abrams (No, but resisting arrest, fighting with cops, taking one of there tasers, attempting to flee, turning and shooting at one of the cops — now that can get you killed.)

Total lack of self-awareness: “This is literally a life and death election. We felt like we can’t endure another four years of Trump; we have to do everything we can to get him out of office.” —acting Planned Parenthood president Alexis McGill Johnson endorsing Joe Biden

Non compos mentis: “There continues to be an epidemic of violence against black trans women.” —Pete Buttigieg

And last… “Whites have five times more privilege than blacks in the womb.” —Doug TenNapel

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