A Modern Quasi-Convention of States
Many opponents of an Article V convention seem to think that it would be a nearly unique event, for which the “only precedent” would be the 1787 constitutional convention. Some even go so far as to oppose non-Article V gatherings among the states. As regular readers know, the idea that a convention of states would […]
Is the Obamacare Mandate Unconstitutional Because It Originated in the Senate?
The Patient Protection and Affordable Care Act (PPACA or “Obamacare”) imposes a sliding-scale financial penalty on people who do not buy health insurance conforming to federal standards. In NFIB v. Sebelius, the Supreme Court upheld the penalty as a constitutional “tax.” But that may not be the last word on its constitutionality. A lawsuit brought […]
A New Triumph for the Right to Keep and Bear Arms (and for II's Dave Kopel)
A federal court of appeals has just vindicated the Second Amendment right to keep and bear arms in a big way. And II’s own Dave Kopel was largely responsible. California denied citizens the right to carry firearms outside their homes, unless they obtained a concealed weapons permit. But to get such a permit, citizens had […]
Rob’s Harvard Article on “Recess Appointments” Is Published—and Goes to the Supreme Court
Last May, I reported that litigation over President Obama’s “recess appointments” was going to the Supreme Court. In fact, oral argument was held a few weeks ago. The Harvard Journal of Law and Public Policy has just published my article on the original meaning of the Recess Appointments Clause. It reports that the Constitution uses […]
Struggling With Nullification
Does a state have the right to nullify federal statutes the state considers unconstitutional? This depends largely on how you define “nullification.” It also depends on what you mean by “right” and what kind of document you understand the Constitution to be. In other words, it depends on your premises. Unfortunately, people often discuss—and debate, […]
Obaminable Nullification & Division Among Constitutionalists
“Progressives” often attack as indefensible proposals by some conservatives that states nullify federal laws those states deem unconstitutional. But “progressive” politicians now are engaged in a nullification campaign far more audacious and lawless than anything suggested by conservatives. The latest example is the decision by Virginia’s new attorney general, Mark Herring, to join the attack […]
The Santa Fe Convention: A 20th Century Convention of States
For over 300 years, American states (and before Independence, American colonies) have cooperated with each other as equal sovereigns to address common problems. One device for doing so is the formal, diplomatic meeting of state delegations (called “committees”) consisting of delegates (called “commissioners”). Meetings of state commissioners may be bilateral—as when two states form a […]
The Framers’ Bloopers
The Constitution’s Framers were very great men, but they were not gods. They made mistakes. By “mistakes,” I’m not talking about matters of political judgment, such as how much to accommodate slavery. I mean drafting errors of the forehead-slapping kind. Consider first a matter of style: The Constitution in its final form was drafted by […]
Lessons For Federalism from Colorado’s Pot “Legalization”
(An earlier version of this post appeared on the website of The American Thinker.) It’s ironic that one of the few “states’ rights” battles won in recent times was Colorado’s decision to legalize marijuana in the teeth of federal laws to the contrary. Pot really isn’t legal in Colorado, of course. The federal government still […]
Bennett-Burr “Bipartisanship” = Yet Another Federal Power Grab
When politicians start talking about “bi-partisan cooperation,” smart citizens get nervous. It usually means another transfer of freedom and taxes to the federal government at the expense of individuals, families, localities, and states. Case in point: a Denver Post op-ed by two U.S. Senators (or their staffs) on their latest “bipartisan” deal. The Senators are […]
A Summary of How States Push Back Against Washington
The Cato Institute has published a new paper by Professor John Dinan that summarizes all the credible ways in which the states can and do push back against Washington, D.C. The only omission to this excellent summary is the states’ amendment powers under the Constitution’s Article V. (Although the states have never forced Congress to […]
How the Contracts Clause was gutted—and how SCOTUS’ early efforts to correct this have been ignored
The Constitution lists several things states may not do. Article I, Section 10 provides that “No State shall . . . pass any . . . law impairing the Obligation of Contracts.” This clause was inserted to curb state “debtor relief” laws that the Framers believed were immoral and rendered bad economic conditions worse. Founding-Era […]
