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 […]
What now?
The November 6 election outcome has many friends of the Constitution dispirited. As so often before, they hoped that by defeating federal candidates contemptuous of constitutional limits and replacing them with others, they could help restore our Constitution. Obviously, that decades-long strategy has failed—spectacularly. They also have long hoped that by appointing the right people […]
The Constitution and One State's "Campaign Finance Reform" Mess
From Montana come valuable lessons about campaign finance “reform.” Montana has a long history of adopting restrictive campaign laws. But such laws often violate citizens’ rights of free speech, as protected by the First Amendment to the U.S. Constitution. They also can be ways of manipulating the electoral process to benefit some interests at the […]
New II Issue Paper Rebuts Myth that Citizen Review of Laws and Taxes Violates the Republican Form
If you are exposed to enough politics, sooner or later you’ll hear the old saw that the U.S. is “a republic and not a democracy.” Along with that saying goes the following claim: Allowing voter initiatives and referenda is unconstitutional: If a state lets voters enact laws or veto tax hikes, the state is too […]
Obama's "American Jobs Act" Ploy Convinces Some, Anyway
The Obama administration’s “American Jobs Act”—a token measure forgotten by all but a few—is back in the news. Just over a year ago, I reported on the constitutional defects of President Obama’s “American Jobs Act” (AJA), a bill clearly designed to force Republicans to vote against it, thereby giving the President political “cover” on his […]
Federal “Campaign Finance” Laws are Mostly Unconstitutional
In a recent posting, I wrote: [I]t is dubious whether the Constitution even gives Congress power to regulate the source and amount of campaign contributions and expenditures. The background and meaning of the Constitution’s “Time, Places and Manner Clause”—which Congress uses to justify such laws—strongly suggests not. The Time, Places and Manner Clause is Article […]
Celebrating Justice O’Connor: Parade Magazine Muffs the Job
Yesterday’s Parade Magazine, the Sunday insert, featured a cover article on former Supreme Court Justice Sandra Day O’Connor. It was a terrific choice: Justice O’Connor has lived an inspirational life. But Parade essentially muffed the job. While displaying its eagerness to celebrate some of her more liberal views, the article entirely overlooked Justice O’Connor’s truly […]
The Supreme Court’s Citizens United Corporate Campaign case Should Be Controversial—But Not for the Reason You Think
If you have any doubt about the ability of the political Left to set the agenda in this country, look at the controversy over the Supreme Court’s 2010 Citizens United corporate campaign finance case. What most people have heard about the case is that it “allowed corporations to spend unlimited amounts in federal elections,” a […]
