Hey, if Elizabeth Warren is Indian, then maybe I am, too!
I confess to a several personal emotions in reaction to the Elizabeth Warren case. Elizabeth Warren, if you recall, is the Harvard Law Professor now running for U.S. Senate in Massachusetts who identified herself to her employers and in law school directories as Native American. But it turns out that she has at most 1/32 […]
Another Federal Real Estate Screw-Up
One of the clearest messages from the American Founding was that the Constitution left regulation of private land within state boundaries to the exclusive prerogative of the states. This was an area completely outside the sphere of the federal government. When, during the debates over the Constitution, advocates were pressed for examples of powers outside federal competence they […]
Original Intent, Original Understanding, Original Meaning
It is often said that the Constitution should be interpreted according to its “original intent, “original understanding,” or “original meaning.” Is there any difference between these concepts? And if so, which is the proper standard? This is an area in which there has been a great deal of confusion, largely because few constitutional writers are […]
The disastrous student loan mess
You have to wonder how many other things the federal government will louse up before people demand a return to constitutional limits. The New York Times has published a widely re-printed report about the extent to which federally guaranteed and subsidized college loan programs have driven up the cost of tuition and leaving an entire […]
New History of Founding Era Conventions
Very few people know that the Constitutional Convention of 1787 only the last of nearly 20 other conventions in which American colonies, and later states, met to deliberate on specified problems. In these gatherings, states met as semi-sovereigns; these were essentially diplomatic meetings. The rule for decision was “one state, one vote.” Those conventions were […]
The Constitution’s officers
Proceeding on the very reasonable theory that the Founders knew what they were doing . . . Seth Barrett Tillman has spent considerable effort reconstructing the meanings of different office/officer phrases.
Did the Founders expect the Courts to Declare Laws Unconstitutional?
Every so often I’m asked whether the Founders anticipated judicial review. In other words, whether the Founders expected the courts to void laws they found unconstitutional. The clear answer is “yes.” During the colonial era, each colony was governed by its charter, which was a kind of constitution for the colony. Colonial laws in violation […]
"How could a former con law professor be so ignorant?"
Quite a few people have asked me how President Obama, as a “former constitutional law professor,” could prove so ignorant about the Constitution. This former con law professor suggests two reasons: * Obama was not a “professor” in the sense that most people use the term—that is someone who becomes an expert in the subject […]
The fatuous "uniqueness" argument for the constitutionality of Obamacare
Obamacare’s supporters argue that the individual mandate is justified because the health care market is unique—it’s something that everyone uses, and a great deal of cost-shifting now occurs in health care. The argument is fatuous for two reasons. First, the cost-shifting is, for the most part, created by Congress itself—through, for example, mandates on hospitals […]
The Government as Public Trust—One Roman Emperor Showed It Is Feasible
“A public office is a public trust”—common saying, but do we really believe it? The American Founders did. Most of them agreed that public officials should be held at least to the standards imposed on private trustees and other fiduciaries—maybe even higher standards, since government officials can do more damage than private fiduciaries. (A fiduciary—from […]
House Rules Committee: “Violate Your Oath No Matter How You Vote!”
It’s a stunning betrayal of all those hardworking, pro-Constitution Americans who gave U.S. House Republicans their majority. Republicans controlling the House Rules Committee have added sweeping new mandates on the states to a bill repealing part of Obamacare. The result is revised H.R. 5. Just on good government grounds, those two very different items do […]
Why an Amendments Convention is not a “Constitutional Convention”
Sometimes a convention for proposing amendments to the U.S. Constitution is referred to as a “constitutional convention.” That title is both wrong and fatally misleading. The correct name—given by the Constitution itself—is convention for proposing amendments. Other accurate names are amendments convention, Article V convention, or convention of the states. In the Founding Era and […]
