The greatly misunderstood Chief Justice John Marshall
One of the most enduring myths in American constitutional history is that Chief Justice John Marshall was a judicial activist whose decisions are good precedent for the modern federal monster state. Marshall was the fourth chief justice of the U.S. Supreme Court (third, if you don’t count John Rutledge, a recess appointment who was never […]
Reining in Congress: An Enforceable Balanced Budget Amendment
There is growing sentiment that one or more constitutional amendments may be necessary to rein in the runaway Congress. The principal mechanism the Founders built into the Constitution for such contingencies is the procedure in Article V by which two thirds of the state legislatures force what the Constitution calls a “Convention for proposing Amendments.” […]
The 1798 “Act for the Relief of Sick and Disabled Seamen:” Yet another “progessive” irrelevancy
As Tom Woods points out on his blog, advocates of Obamacare have dug up a 1798 federal statute that, they say, shows that the original understanding of the Constitution is broad enough to authorize federal health care programs. The statute authorized creation of federal hospitals for sailors. After I entered a brief response to his […]
Time Mag’s Constitutional Baby Babble
Several readers sent me for comment a lengthy cover article in Time Magazine by managing editor Richard Stengel. Stengel’s piece is one result of new public interest in our Constitution and in “first principles”—interest that has forced political liberals (Stengel has been a paid Democratic activist) to think about the document’s real meaning. Previously, of […]
A Victory for the Tenth Amendment in the Supreme Court
Two years ago, I posted an item on the Tenth Amendment Center website entitled, “It’s the People’s Right.” My point was that federalism was not created primarily for the benefit of the states or state officials, but for the protection of individual liberty. I didn’t invent this argument—many others have recognized that it is the […]
More evidence the Constitution limited federal power
In my last post I showed how pre-Revolutionary colonial pamphlets espousing the American cause tend to rebut a favorite theory of some “progressive” writers—that the Constitution granted Congress almost complete power over all activities with interstate effects. Surprisingly, most delegates to the 1787 constitutional convention initially favored a central government nearly that powerful. They would […]
How Pre-Revolution Pamphlets Help Show that a Key “Progressive” Constitutional Theory Is Wrong
Writers on the Constitution frequently overlook valuable aids to interpreting the document. I previously have mentioned the example of eighteenth-century law books. Also largely neglected are the pre-Revolutionary pamphlets written by Americans defending their colonies against British overreaching. (For an article on constitutional sources, click here.) These pamphlets were composed from 1763 until the outbreak […]
Obamacare is NOT “necessary and proper”
The Independence Institute has filed amicus briefs in two of the anti-Obamacare cases. The briefs focus specifically on the Necessary and Proper Clause (I-8-18), which the Obama administration inaccurately claims justifies federal control of health care. The briefs survey the original meaning of the Necessary and Proper Clause, based on my research and that of […]
Yes, you can vote on taxes and laws in a republic!
Despite what you may have heard, allowing people to vote on taxes and other laws is completely consistent with the “republican form of government.” There is an old, and bogus, claim that to the contrary: that the U.S. Constitution requires states to lock citizens out from direct lawmaking. The argument is that only a system […]
GOP blocks Liu from federal judgeship
There has been much attention recently on the Republican decision to block President Obama’s nomination of law professor Goodwin Liu for the United States Court of Appeals for the Ninth Circuit. Attention is focused on his allegedly out-of-the-mainstream legal views. But to this ex-law professor, Liu doesn’t look that unusual. He looks like just another […]
Does the Necessary and Proper Clause Grant “Broad Authority” to Congress? Actually, None at All
Probably no part of the Constitution has been so misunderstood as the Necessary and Proper Clause, which is located at Article I, Section 8, Clause 18. The Necessary and Proper Clause has been called both an “elastic clause” and a “sweeping clause,” and many have claimed it grants vast power to Congress. For example, a […]
What about Interstate Compacts? A frank look at the problems
In recent months, there has been interest in states forming compacts with each other to opt out of ObamaCare or other federal programs. The idea is that because such compacts have the effect of federal law, they will supersede earlier federal laws (such as ObamaCare). The strategy is apparently being driven by one or more […]
