The Anti-U.S. Origins of a Key Argument Against Letting the People Vote on Laws and Taxes
Opponents of popular government, such as those now challenging Colorado’s Taxpayer Bill of Rights (TABOR), argue that when a state allows the people to vote directly on laws or taxes it violates the U.S. Constitution’s mandate that every state have a “Republican Form of Government.” They claim their view comes from the American Founders. In […]
Neat Stuff We Learn About the Constitution When We Go Beyond The Federalist Papers
If you want to know more about the Constitution, don’t rely exclusively—or even primarily—on the Federalist Papers. For a good illustration of what other authors can teach us, read on. During the 1787-90 ratification debates over the Constitution, much more than The Federalist was written to illustrate the document’s meaning. True, The Federalist is among […]
Constitutional Arcana: The Forgotten Navigation Convention of 1786
In an earlier post, I reported that the Constitutional Convention of 1787 was far from unique: that during the lifetime of Benjamin Franklin (1706-1790) nearly 20 inter-colonial and interstate conventions met. Some were attended by as few as three colonies or states; others by as many as 12. These multi-governmental conventions were held in Philadelphia […]
TABOR Endangered?
Die-hards attacking Coloradans’ constitutional right to personally vote on tax increases won an unexpected victory in federal court when Judge William J. Martinez found that their lawsuit is justiciable. That means the case can proceed to the merits. Colorado’s Taxpayer Bill of Rights (TABOR) was adopted in 1992, and has been tattered by hostile lawsuit […]
Yes, the Supreme Court’s Medicaid Decision was Good Contract Law
In NFIB v. Sebelius (the Obamacare decision) a 7-2 majority voided that part of the law that required states to join the Medicaid expansion or lose all (not just a part) of their Medicaid funds. The court treated the federal-state Medicaid relationship as a contract. It essentially held that while the states had granted the […]
Obamacare Decision Suggests U.S. Malpractice Bill Unconstitutional
Little-noticed amid the commentary on the Supreme Court’s health care decision is the decision’s blow to congressional efforts to federalize medical malpractice law—a potential element of the Republican plan to “replace Obamacare.” Medical malpractice cases, like most areas of civil justice, traditionally are judged by state courts under state law rather than by the national […]
New Article: James Madison, Federal Overreaching, and Amendments Conventions
The writings of James Madison still offer useful guidance for states seeking to restrain federal overreaching. Akron Law Review has just published my short article discussing the evolution of Madison’s thought on the subject—from Federalist No. 46, through the Virginia Resolution of 1798 and subsequent writings, to his final recommendation that states unhappy with federal […]
A Colonial Pamphlet Helps Show Why the Constitution’s Necessary and Proper Clause Granted No Power
Learn more: Hear a podcast on this subject. As I have noted before (for example, here and here) pamphlets written in support of the colonial cause during the years 1763-1774 help us greatly in understanding the language of the Constitution. Unfortunately, most constitutional writers regularly overlook those pamphlets—one reason mistakes of constitutional interpretation are so […]
Montana Supreme Court’s “History” Turns Out To Be Weak
The Montana Supreme Court won praise for its recitation of history in its recent corporate finance case, Western Tradition Partnership v. Attorney General (later called American Tradition Partnership v. Bulloch). But that was before anyone bothered to check the court’s version of history. Earlier this year, five of the seven state justices held that Montana’s […]
Speaking out against the Obamacare decision
Defects in the Supremes' holding that the Obamacare penalty is a "tax"
For a podcast covering this subject in more detail, click here. Under the Constitution’s original meaning, the Supreme Court’s holding that Obamacare’s penalty for not purchasing health insurance is a tax is defective in at least two respects. First: The court fails to understand the Constitution’s line of distinction between those exactions that qualify as […]
New “how to” paper on proposing constitutional amendments by convention
The Independence Institute has published my new Issue Paper, Amending the Constitution by Convention: Practical Guidance for Citizens and Policymakers. It explains the basic rules and makes recommendations for those seeking constitutional reform in a way that avoids congressional obstruction. This work is an updated version of my earlier version, published last year by Arizona’s […]
