The Myth of the “Conservative Supreme Court”
Is the current U.S. Supreme Court conservative? No, it is not. And certainly not if you define “conservative” as interpreting the Constitution according to the understanding of the makers. The claim that the Court has a conservative majority is certainly widespread. Googling the phrase “conservative supreme court” turned up over 38 million hits. The more […]
Can the President Raise the Debt Limit Unilaterally? Hell no! — Part II
The claim—partly silly, partly dangerous—that President Obama may raise the debt limit unilaterally without the approval of Congress is again being raised. I addressed it previously here. Now it has been further debunked in a Wall Street Journal op-ed authored by David B. Rivkin and Lee A. Casey. Under the Constitution, only Congress may incur […]
Boehner Admits Mistake: Sometimes the Constitutional Course is the Wisest Politically
In a December 23 post, I pointed out that House Speaker John Boehner should not be conceding the initiative on revenue measures to the Senate and President. Doing so not only made no political sense, but it was contrary to the Constitution’s mandate that revenue bills originate in the House. Mr. Boehner now agrees that […]
A Response to Professor Seidman
Should we acknowledge that the U.S. Constitution is filled with “archaic, idiosyncratic and downright evil provisions,” and “extricat[e] ourselves from constitutional bondage” by cashiering the document? “As the nation teeters at the edge of fiscal chaos, observers are reaching the conclusion that the American system of government is broken,” argues Louis Michael Seidman, tasked with […]
A Correction They Didn’t Print: The Denver Post and Judge Bork
A Denver Post article on the passing of Judge Robert Bork (Dec. 20) says, “He advocated a view of judging known as ‘strict constructionism’ or ‘originalism.’”Actually, the writer was confused. Those two terms have very different meanings. An originalist believes the Constitution, like other legal documents, should be construed as understood by the people who […]
It’s (not quite) a Riot! How the Constitution’s language differs
“. . . it opens a door to the appointment of a swarm of revenue and excise officers to prey upon the honest and industrious part of the community, eat up their substance, and riot on the spoils of the country.” – Judge Robert Yates, New York delegate to the Constitutional Convention (warning in Dec. […]
Constitutionally, Speaker Boehner Should Not Be Making Pre-emptive Tax Concessions
From the standpoint of one familiar with our constitutional history, the spectacle of the Speaker of the U.S. House of Representatives making pre-emptive tax concessions to the President is unnerving. Over a period of centuries, the lower house of the English Parliament, the House of Commons, fought for and won the “power of the purse”—that […]
Do States Have a Right to Secede?
The news that thousands of people have signed a petition for their own states to secede from the union has raised this issue once again. We’ll leave to another time the suspicion-inducing question of why so much attention is focused on the most extreme remedy for federal overreaching when the Framers’ own perfectly constitutional remedy […]
Why States Must Shun the Obamacare Medicaid Expansion
During the Obamacare case before the Supreme Court, the Independence Institute argued that the law’s provisions forcing the states to expand Medicaid were unconstitutional. Neither the Constitution nor case law, we pointed out, permits the federal government to use federal spending programs to coerce the states. Seven of the nine justices agreed with us, essentially […]
Bans on Political Party Endorsements of Judges Held Invalid
A federal appeals court has struck down a Montana law forbidding political parties from endorsing candidates in non-partisan judicial elections. The court order does not affect the system by which candidates for judgeships run without party designation. But it does affirm the right of political parties to speak their minds about those candidates. Non-partisan elections […]
Did the Founders’ Constitution Permit Federal Tort Reform?
NOTE: The photo shows the author at the sundial in James Madison’s garden at Montpelier, VA. On behalf of the national Chamber of Commerce, super-lawyer Paul Clement has authored a new paper arguing that federal tort reform is constitutional. The paper begins with a section purporting to show that the Framers’ Commerce Clause was broad […]
“Necessary and Proper” = “Necessaria et Opportuna”
To justify the huge growth of federal regulations over the last few decades, lawyers and judges frequently cite the Constitution’s Necessary and Proper Clause (I-8-18). But is that provision really broad enough to authorize what they claim it authorizes? This little essay focuses on the meaning of the word “necessary.” Early legal documents—used by English […]
