The Constitution’s Week in Review – 23 April 2016

April 25, 2016

Article 2:  Faithfully Execute the Laws.

All eyes were on the Supreme Court on Monday as oral arguments were heard in the case of Texas v. U.S. over whether President Obama overstepped his authority in issuing instructions to defer deportation of a whole class of illegal immigrants, amounting to about 4.3 million persons.  To courtroom observers,[1] the Justices questions appeared to reveal a 4-4 split. Such a decision will leave intact the injunction against the President’s action imposed by a District Court Judge and sustained by the 5th Circuit Court of Appeals.

The chickens have flown the coop, the horses have fled the barn, and Elvis has left the building, but apparently House Republicans think it is finally time to investigate the President’s flagrant abuses of the Constitution.[2]  Some will say: “Better late than never.”  Perhaps.  It will be an interesting summer in more ways than one.

First Amendment:  Establishment Clause.

The Tennessee legislature voted to designate[3] the Bible as the state’s “official book.”  The Governor vetoed the bill and the legislature failed to muster the votes to override the veto, even though the bill initially passed with an apparent veto-proof majority.  Was the Holy Bible being “demeaned” by such an act or merely being recognized for its impact in the formation of our republic and states?  Would declaring the Bible as the state’s official book “establish” Christianity as an official state religion?  Does the First Amendment prevent a state from declaring an official state religion? (Careful on this one!)  You decide.

Fourth Amendment: Must you Submit to a Blood Test?

On Wednesday, 20 April, the U.S. Supreme Court heard oral arguments[4] in the case of Birchfield v. North Dakota. That case will determine whether a state can penalize a driver who asserts a Fourth Amendment constitutional right not to have his blood drawn or breath analyzed without his consent.

Is driving a car on a public road a right or a privilege?  The states of North Dakota and Minnesota think it is a privilege which entails forfeiting your 4th Amendment right against warrantless search and seizure.  Those states (and others) enacted laws making refusal of a breathalyzer or blood test a crime, allowing for immediate arrest. Those laws are now being challenged.

A 4-4 tie vote is likely in this case, leaving intact the lower court decision which upheld the constitutionality of the state laws.

Fifth Amendment:  A Government Land Grab?

You and your wife buy an attractive plot of land along the St. Croix River,[5]put a vacation cottage on it, and then buy an adjacent lot as an investment, hoping to sell or develop the second lot later. The state then changes the rules on lot development making it impossible to develop the second lot, by either you or a future buyer.  The state has effectively “taken” your property by rendering your investment worthless, right?  You are due just compensation for this taking, right?  But then the state announces it will not recompense you for making the second lot nearly worthless because it considers both your lots as one, not two.  Folks, you can’t make this stuff up.  But this is what happens when you vote people into office who have no idea what is the purpose of government.  The Supreme Court has agreed to hear Murr V. State Of Wisconsin and St. Croix County.  Perhaps they will bring reason to the fore.

14th Amendment:  Coming to a School Near You.

Gloucester County, Virginia, school district has been ordered[6] by a 4thCircuit Court of Appeals panel (2-1) to allow a gender-confused female to use the boy’s bathroom at her school. The panel concluded that Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of sex—should be interpreted as prohibiting discrimination on the basis of gender identity, as a Department of Education letter suggested in 2015.  The school board has asked the full 4th Circuit[7] to review the panel’s decision en banc (meaning by the full court). I’ll keep you posted.  Seriously, if you think your local school district is somehow going to avoid this issue, you are mistaken. It is coming and you better prepare to defend what you believe in.

Meanwhile, in the states: 

I’ve discussed thie issue of secession several times in the past in some detail, so I won’t elaborate once again, but if the November election puts a Democrat in the White House, expect talk in Texas to get serious.[8]  Just saying.

Other states are putting in place some significant safeguards for individual freedom:
The Tennessee legislature blocked any attempt[9] by the federal government to attempt an end-run around the 2ndAmendment through international law or treaties.
Nebraska ended civil asset forfeiture[10] in that state.
The Illinois Senate voted unanimously[11] to prohibit police spying through use of “stingray” devices (AKA "cell site simulator"). The measure still has to pass the House, but this is pretty huge, in my book.
The Louisiana Senate voted to allow some raw milk sales[12] in the state. 

Upcoming Events:
Lessons in Liberty.  On May 16th you can hear Dr. Jim Davids speak on “Choosing Godly Representatives” from 7-9pm at the Foundation for American Christian Education.  Attend in person or online.  Register at


Copyright ©2016

Gary Porter is Executive Director of the Constitution Leadership Initiative, Inc., a project to inform Americans about the Founder’s view of their Constitution. In addition to writing "The Constitution's Week in Review" at, he writes regularly for the Fairfax Free Citizen of Fairfax Virginia. Mr. Porter also teaches at various locations, as well as hosting a weekly radio broadcast ("The Constitution Matters"). The program can also be heard live on the Internet every Friday morning at 
Visit Gary Porter's website at