The Little-Known—but Seminal—York Town Convention of 1777
The U.S. Constitution authorizes a “convention for proposing amendments” to offer amendments for ratification (or rejection) by the states. The mechanism has never been used (all amendments have come from Congress), and many people have been curious about how it is supposed to work. But that’s because they are unaware of the long series of […]
Another Treasure Hunt: Tracking Down Bits from the American Founding
Every once in a while I tell about one of my historical treasure hunts. Here’s another: When the Constitution was being debated, Anti-Federalists warned that it contained insufficient safeguards against an overweening government. They asserted that some constitutional language could be twisted by unscrupulous advocates of “big government” to justify centralized federal power. The argument […]
To “regulate” Commerce means more than to “make it regular”
From time to time I punch holes in “progressive” myths about the Constitution and the American Founding. But conservatives and libertarians have their own myths as well. One is that congressional authority under the Commerce Clause (I-8-3) to “regulate Commerce among the several States” permits Congress only to facilitate trade among the States—i.e., that “to […]
Original intent? Understanding? Meaning?
When the Constitution was written, there were specific legal rules about how one goes about interpreting constitutional phrases. Over the course of time, however, judges and commentators gradually forgot them. In the 1980s, some argued that the courts should “return” to applying the original intent behind the Constitution—that is,what the framers (drafters) of the document […]
More Constitutional Baby Babble—this time at Vanity Fair
Vanity Fair’s sophisticated approach to rescuing a drowning man is this: Lecture him about how we all need plenty of water. The tony mag’s new attack on the Tea Party is entitled “Debt and Dumb.” But the attack shows the authors and editors at VF to be the ones either deaf or dumb: Either deaf […]
Did Judge Silberman ask the Supreme Court to rein in Congress?
Two notes on the court challenges to Obamacare: First: The Supreme Court has agreed to hear the challenge to the law’s expensive and humiliating Medicaid mandates on the states. The Court did so although no lower court has yet overturned those mandates. This is clearly the correct decision. Those mandates appear to violate even the […]
Dr. Krugman’s Rants
“I think too much realism can actually be a problem.” – Paul Krugman on the PBS Charlie Rose Show, Oct. 12, 2011 ****** Enough is enough. One expects some exaggeration from a political columnist, but one expects at least a minimal level of accuracy if the columnist is a Nobel Laureate—even if he writes for […]
Congress, Butt Out! The Constitution Reserves Malpractice Reform for the States
In their zeal to adopt a federal malpractice reform bill to dictate procedures to state courts, many Republicans in Congress are doing precisely what they rightly accuse Democrats of doing: blithely disregarding the Constitution’s clear limits on federal power. Their proposals, once encapsulated in H.R. 5 and then slipped into the Senate Republican “jobs bill,” […]
What A Little-Known Colonial Pamphlet Tells Us About the Constitution
Between 1764 and the Declaration of Independence in 1776 Americans produced a rich series of pamphlets and resolutions listing their grievances against the central government of the British Empire. As I have pointed out before, reading those pamphlets is very helpful in understanding what the Constitution really means. And ignorance of them contributes to common […]
How Congress Took Control of Indians’ Lives
Just as Congress has stretched its Interstate Commerce Power into authority over the entire national economy, so it has used the Indian Commerce Clause to justify micro-managing the lives of American Indians and of their tribes. It wasn’t supposed to be that way. The Articles of Confederation gave Congress power over Indian “affairs,” but in […]
Yet another “progressive” argument for an unlimited Commerce Power doesn’t add up
As I’ve pointed out before in this column, there is a sort of cottage industry among “progressive” law professors that involves taking snatches of the Founding-Era record—or imagined snatches—to argue that the current overgrown federal government is really constitutional after all. In past posts, I’ve reported on a misinterpretation of the Necessary and Proper Clause […]
Attacks on the Modern Tea Party Resemble Abuse British Tories Hurled at American Patriots
“Criminals!” “Frenzy!” Does this sound like the abuse that apologists for Big Government fling at the modern Tea Party? It should. Tea Party activists have been the victims of some incredible verbal smears—especially considering that (unlike leftist demonstrators) they have been almost uniformly peaceful and law-abiding. But modern Tea Partiers can point with pride to […]
